Novabrite Lighting Sdn Bhd v Emrail Sdn Bhd (WA-28JM-14-04/2024)

This is the Aggrieved Party's application in the Amended Notice of Motion in Enclosure 178 for leave nunc pro tunc under section 410(c) of the Companies Act 2016 (CA 2016) to commence or continue certain proceedings filed against the Respondent, Emrail Sdn Bhd (Emrail), in relation to subcontract works for “Package C Restoration of Track and Slope Stabilisation Track Rehabilitation and Associated Works due to Major Flood between Gua Musang and Tumpat Railway Station, Kelantan” (the Project).

The Aggrieved Party is Puncak Gali Harmoni Sdn Bhd (PGH). The Applicant in the main Judicial Management (JM) proceedings is Novabrite Lighting Sdn Bhd (Novabrite). PGH is a subcontractor who claimed to have been awarded works under the Project by Emrail.

The proceedings for which PGH seeks leave to commence and/or continue are:

that the Aggrieved Party be granted leave nunc pro tunc to commence and/or continue legal proceedings under the contractual alternative dispute resolution process pursuant to Clause 4 of the Letter of Award dated 29 May 2025 in respect of the sub-contract works for “Package C Restoration of Track and Slope Stabilisation Track Rehabilitation and Associated Works due to Major Flood between Gua Musang and Tumpat Railway Station, Kelantan”, awarded to the Aggrieved Party by the Respondent, and the Letter of Undertaking dated 29 August 2025 issued by the Respondent to the Aggrieved Party, beginning with the contractual pre-condition of mediation and, if required, arbitral proceedings against the Respondent at the Asian International Arbitration

that the Aggrieved Party be granted leave nunc pro tunc to commence and/or continue an Originating Summons in the High Court of Malaya against the Respondent pursuant to sections 11(1)(a), (b) and 50 of the Arbitration Act 2005, and any interim applications filed in the said Originating Summons and any appeal arising therefrom (and any interim applications which may arise in such appeal); (collectively referred to as “the Proceedings”).

PGH commenced the Proceedings before obtaining leave from this Court, on the basis that there was a real and urgent danger that Emrail would destroy the subject matter of the dispute by awarding the subcontract works to another party without notice. That urgency prompted PGH to file both the leave application and the Proceedings on the same day, i.e. 10 September 2025.

Having carefully considered the written and oral submissions of all parties and the authorities cited therein, I allowed PGH’s application for leave nunc pro tunc. My reasons are set out below. THE STATUTORY PROVISION: SECTION 410(c) OF THE CA 2016

The provision governing this application is section 410(c) of the CA 2016, which reads: “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 – … …

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 moratorium under section 410 takes effect automatically from the moment a JM application is filed. As gleaned from the Hansard debates on the CA 2016, its purpose is to give a financially distressed company breathing space to implement restructuring and rehabilitation efforts and to prevent it from being wound up during rehabilitation.

As the Court of Appeal observed in Kumpulan Liziz Sdn Bhd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd [2022] 1 MLJ 570, the mechanism for obtaining leave under section 410 is built into the section to prevent abuse of the automatic moratorium. The Court has discretion to grant leave where there are cogent reasons and may even impose such terms as it deems fit.

I agree that the moratorium under section 410 is similar in purpose and operation to a restraining order under section 368(1) of CA 2016 in a Scheme of Arrangement. The Federal Court in Mansion Properties Sdn Bhd v Sham Chin Yen & Ors [2021] 1 MLJ 527 described such an order as giving an ailing company breathing room to implement restructuring efforts.

However, that purpose is not unlimited. To my mind, the moratorium cannot and should not be used as a shield by a company to evade legitimate contractual obligations, especially when those obligations appear to have arisen during the pendency of the JM proceedings themselves. DOES PGH NEED TO INTERVENE IN THE JM PROCEEDINGS BEFORE SEEKING LEAVE?

Both Novabrite and Emrail contend that PGH, having withdrawn its prayer to intervene in the JM proceedings, lacks locus standi to seek leave under section 410(c) of the CA 2016. I reject this contention in its entirety.

Significantly, the learned counsel for Novabrite candidly conceded during oral submissions that there is no authority which clearly establishes that a party must first obtain leave to intervene before seeking leave under section 410(c) of the CA

2016.

Section 410(c) of the CA 2016 is clear and unambiguous. The provision merely requires a party to obtain the Court's leave before commencing or continuing proceedings against a company under judicial management. It says nothing about intervention. It does not stipulate that a party must first intervene in the JM proceedings as a precondition to seeking leave. Reading such a requirement into the provision would impose an additional word or condition that Parliament chose not to include, which is impermissible (see: Tebin bin Mostapa (as administrator of the estate of Hj Mostapa Bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrator of the estate of Balia Bin Munir, deceased) [2020] 4 MLJ 721).

As this Court noted in Kumpulan Liziz (supra), the leave mechanism is designed to prevent abuse of the moratorium. It is not contingent on a party's status as an intervenor in the JM proceedings.

The distinction between (a) intervening in the JM proceedings to participate in or oppose the making of a JM order, and (b) seeking leave under section 410(c) of the CA 2016 to bring independent proceedings, is a critical one.

I am of the view that these are two entirely different procedural steps serving distinct purposes. A party that intervenes in the JM proceedings does so to contest whether a JM order should be made or to challenge the appointment of a Judicial Manager.

17.

This distinction is borne out by the authorities. The cases relied upon by Novabrite to establish the need for intervention, Desa Tiasa Sdn Bhd v CME Group Berhad & Anor [2025] CLJU 3387 and Leadmont Development Sdn Bhd v Infra Segi Sdn Bhd [2018] 10 CLJ 412, concerned applications to intervene in the JM proceedings to oppose the making of a JM order or the nomination of the Judicial Manager. Those cases have no bearing whatsoever on an application for leave under section 410(c) of the CA 2016.

Similarly, the cases of Re Nor Azah Awin; Ex P Lee Swee Eng; Bank Perusahaan Kecil & Sederhana Malaysia Bhd (Intervener) [2013] 8 CLJ 73 and Yoong Khong Fah & Ors v NFC Clothier Sdn Bhd [2017] 1 LNS 225, cited by Emrail, do not support the proposition that intervention is required before leave may be sought. The former concerned leave under section 8(1) of the Bankruptcy Act 1967, which has materially different wording from section 410(c) of the CA 2016. Under the bankruptcy provision, a creditor must prove the nature of its debt as a precondition for leave, which requires some form of participation, but no equivalent precondition exists under section 410(c) of the CA 2016. The latter case concerned locus standi to set aside a consent judgment, again in entirely different circumstances.

I also note an important fact: before PGH withdrew its intervention prayer, Emrail itself had objected to that prayer on the ground that PGH was not a secured creditor. Having objected to PGH's intervention, Emrail cannot now turn around and argue that PGH should have intervened before seeking leave. This is a clear case of blowing hot and cold, and I decline to accept this reversal of position.

I also reject Novabrite's reliance on Re Ace Holdings Bhd (Amiliah bt Lathy Mohamed & Ors, Interveners) [2025] CLJU 1565 to support the proposition that leave must be heard after the JM application. In that case, the Court deferred the leave application only because of a specific pending striking-out application against the JM proceedings themselves. It does not lay down any general proposition that intervention is required, nor that leave cannot be heard while the JM application is pending.

Moreover, the position I have reached above is further supported by analogy with the established jurisprudence under section 471(1) of the CA 2016 and its predecessor, section 226(3) of the CA 1965. The leave requirement under section 471(1) of the CA 2016, which takes effect upon the making of a winding-up order, is, in all material respects, structurally identical to section 410(c) of the CA 2016. Both provisions impose a statutory moratorium on proceedings against the company and permit such proceedings to be commenced or continued only with the court’s leave and subject to such terms as the court may impose. The operative legislative language is, to all intents and purposes, the same.

The High Court in YCS Corporation Bhd v Maritime Corporate Park Sdn Bhd; Northport Container Terminal Sdn Bhd & Anor [2009] 3 CLJ 704 held that there is no legal or procedural requirement to intervene in the winding-up proceedings before seeking leave under section 226(3) of the CA 1965. The court reasoned that the applicants had no interest in the winding-up proceedings and that their sole concern was their separate suit. Compelling them to intervene in proceedings in which they had no stake would be contrary to the very purpose of the provision, which exists not to impede claimants but to protect the company from being burdened by multiple suits during the winding-up period.

In Zamil Steel Vietnam Building Co Ltd v GTK Bhd [2015] 6 MLJ 374, the Court of Appeal affirmed the same. The Court held that a third party seeking to continue separate proceedings against a company in winding-up was under no obligation to intervene in the winding-up proceedings before applying for leave under section 226(3). The Court of Appeal reasoned that the leave requirement applies universally to all third parties, and that neither the Companies Act, the Winding-Up Rules, nor the Rules of Court imposed any prior intervention requirement as a precondition to seeking leave.

Given the textual and purposive similarity between section 226(3) of the CA 1965 (now section 471(1)) and section 410(c) of the CA 2016, I find that the reasoning in Zamil Steel and YCS applies with equal force in the present context. The leave regime under section 410(c) is designed to subject proceedings against the company to judicial supervision during the period of judicial management protection. It is not, and was never intended to be, a mechanism to conscript disinterested third parties into the judicial management proceedings themselves.

For all the reasons set out above, and reinforced by the analogy with the winding-up regime under section 471 of the CA 2016, I am satisfied that PGH, having no interest in the JM proceedings and seeking only to safeguard its contractual rights with Emrail, has locus standi to seek leave under section 410(c) of the CA 2016 without intervening in the JM proceedings. CAN THE COURT GRANT LEAVE NUNC PRO TUNC UNDER SECTION 410(c) OF THE CA 2016?

The next question is whether this Court has the power to grant leave retrospectively, that is, leave nunc pro tunc, where the Proceedings were commenced before leave was obtained. I hold that it can, for the following reasons.

Section 410(c) Does Not Prohibit Retrospective Leave

The expression nunc pro tunc means "now for then". It is a principle of law that allows a court to treat a proceeding as having taken place at an earlier date, thereby relieving a party from hardship that arose without any fault of their own. The Federal Court in Lai King Lung & Anor v Merais Sdn Bhd [2020] 5 MLJ 614 stated the principle thus: “The court will in certain cases allow a proceeding to be treated as being taken on a particular date, although as a matter of fact not completed until afterwards: Where this is done the proceeding is said to be taken nunc pro tunc. The applicability of the rule of nunc pro tunc which is really based on the maxim actus curiae neminem gravabiti is confined to those cases only in which some hardship would be visited upon a party, without any fault of his unless he were relieved from it by allowing a proceeding as to be taken now for then." [emphasis added]

It is well established that the Court’s power to make an order nunc pro tunc arises from its inherent jurisdiction. This jurisdiction enables the Court, in appropriate circumstances, to give retrospective effect to an order where justice so requires and where no prejudice is caused to the opposing party. This principle was recognised in Hartley Poynton Ltd v Ali (as executor and trustee of the estate of Ali) [2005] VSCA 53.

Crucially, section 410(c) of the CA 2016 does not require "prior leave", i.e. leave obtained before proceedings are commenced. The provision simply requires leave of Court, without specifying that it must precede the filing of the Proceedings. It is a cardinal principle of statutory interpretation that Courts should not read words into a statute that Parliament has not included. The Federal Court stated in Tebin bin Mostapa (as administrator of the estate of Hj Mostapa Bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrator of the estate of Balia Bin Munir, deceased) (supra) that: “…Therefore, where the words of a statute are unambiguous, plain and clear, they must be given their natural and ordinary meaning. The statute should be construed as a whole and the words used in a section must be given their plain grammatical meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in the gaps disclosed. Even if the words in a statute may be ambiguous, the power and duty of the court ‘to travel outside them on a voyage of discovery are strictly limited’...” [emphasis added]

Since Parliament chose not to use the words “prior leave” or to expressly prohibit retrospective leave in section 410(c) of the CA 2016, this Court should not construe section 410(c) of the CA 2016 as doing so.

The English High Court in Godfrey v Torpy [2007] EWHC 919 (Ch) held that Parliament must use clear words if retrospective leave is not permitted. There are no such clear words in section 410(c) of the CA 2016.

Further support is found in the word "continued" in section 410(c) of the CA 2016, which provides that proceedings may not be “commenced or continued” without leave. The use of the word “continued” necessarily contemplates that proceedings may already have been commenced when leave is sought. This is the classic application of the nunc pro tunc principle.

The Federal Court in Five Star Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Other Appeals [2024] 2 MLRA 1, relied upon by Emrail, drew precisely this distinction when comparing the Government Proceedings Act 1956 (which did not contain the word ‘continue’ [meneruskan]) with section 471 of the CA 2016 (which did contain the word ‘proceeded with or commenced’). The Federal Court stated that: “[42] It must also be emphasised that the term “meneruskan” is not found in s 9 at all, especially in s 9(1) in which case, the impugned consent is without the authority of law. We find it not just difficult but a strain on the language to say that the words “institute” or “join” include “meneruskan”. [43] Perhaps, this becomes clearer when section 9(1) is contrasted with the power to grant sanction in cases of insolvency under section 471(1) of the Companies Act 2016 [Act 333]. That provision reads as follows:

(1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes. [44] Section 471(1) uses the words “proceeded with or commenced”. This indicates that the power to grant leave to sue wound up companies is not limited to fresh actions or proceedings [”commenced”] but extends to the instance where actions or proceedings have already commenced [”proceeded with”]. In the latter, these actions may now proceed, carry on or be continued; or “meneruskan”. Again, these words do not appear in s 9(1) in which case, the AG’s consent of 31 May 2016 is without legal power or is outside the terms of s 9(1); and is thus invalid.” [emphasis added]

It is noted that section 410(c) of the CA 2016 likewise employs the word “continued”. Accordingly, it is the considered view of this Court that the same reasoning applies. The word “continued” connotes the granting of permission or consent to proceed with a process or action that has already commenced.

Leave Nunc Pro Tunc Has Been Recognised in JM

The High Court in Pembinaan BY Sdn Bhd v Minda Muhibah Sdn Bhd & Anor [2026] 1 AMR 696 expressly recognised and granted leave nunc pro tunc under section 410(c) of the CA 2016, where winding-up proceedings were commenced after a JM application had been filed.

In Leing Ti Kang v Lau Tian Kit [2020] CLJU 2085, Ong Chee Kwan JC (as his Lordship then was) held that merely filing an application after a JM application had commenced did not ipso facto render it invalid, because there was a pending application for leave nunc pro tunc before the JM Court. This confirms that retroactive leave is available under the provision.

It is noteworthy that the decision in Leing Ti Kang v Lau Tian Kit (supra) was subsequently affirmed by the Court of Appeal.

This Court also notes the Court of Appeal’s conduct in the present case. By allowing PGH’s section 44 of the Courts of Judicature Act 1964 motion for interim preservation orders, subject to leave being granted by this Court, the Court of Appeal convincingly suggests that it recognised that this Court was capable of granting leave retrospectively.

Emrail also relied on Tan Kok Hwee v Loh Soon Wah & Ors [2024] MLRHU 1024. It is noted that the case concerned derivative actions under sections 347 and 348 of the CA 2016, which set mandatory timelines and do not contain the word “continued”. Those provisions are materially different from section 410(c) of the CA 2016, and the case is therefore distinguishable.

I am accordingly satisfied that this Court has the power to grant leave nunc pro tunc under section 410(c) of the CA 2016.

The High Court in Millenium Mall Sdn Bhd v Siew Chee Kok & Ors [2022] 1 LNS 1409 set out the relevant considerations for determining whether leave ought to be granted under section 410(c) of the CA 2016. I adopt those considerations and apply them to the facts before me.

whether the leave application is bona fide;

whether there is a prima facie case established by the applicant against the company under judicial management;

whether the matter can be dealt with by the Judicial Manager in the judicial management process;

whether the application for leave will impede the judicial management process or purpose;

the balance of interest between the applicant and the other creditors of the company;

whether loss or prejudice will be suffered by the applicant if leave is not given; and

any other factors which the Court considers just and necessary.

I shall address each of these considerations in turn.

The material background facts, contended by PGH to persuade this Court that PGH has a bona fide and prima facie case, are as follows:

On 8 April 2024, Novabrite filed the present judicial management application against Emrail. The application is pending before this Court.

On 29 May 2025, more than a year after the JM application was filed, Emrail issued a Letter of Award to PGH, appointing PGH as its sole subcontractor for the Project at a contract price of RM145,300,000.00. The Letter of Award contained a mediation and arbitration clause (Clause 4) as the agreed mechanism for resolving disputes.

Between 16 July and 26 July 2025, PGH alleged that it had advanced loans totalling RM630,000.00 to Emrail to assist with Emrail's financial difficulties.

On 6 August 2025, the Ministry of Transport (MOT) awarded Emrail the main contract for the Project at a price of RM185,743,000.00. PGH contended that this main contract was awarded largely because of PGH’s track record, as Emrail had previously been terminated as the contractor for the same project.

On 29 August 2025, Emrail issued a Letter of Undertaking to PGH. This was issued with full knowledge that the JM proceedings were already pending. In the Letter of Undertaking, Emrail unconditionally and irrevocably undertook, among other things, to: (i) resolve all pending legal proceedings against it that may affect the Project; (ii) ensure due payment to PGH under the sub-contract; (iii) notify MOT that PGH was to be appointed as sub-contractor; (iv) assign all rights, benefits and entitlements under the Project to PGH; and (v) jointly operate a project account to receive payments from MOT. The Letter of Undertaking was stated to be irrevocable.

Between 30 and 31 August 2025, barely two days after the Letter of Undertaking was issued, Emrail’s representative informed PGH that Emrail had secured financial assistance from another party and would award the subcontract works to that party instead.

PGH alleged that, critically, Emrail failed to issue any written notice of termination of the Letter of Award, as required by Clause 3.2 of that document. As of the date of this application, no such written notice of termination has been issued. The Letter of Award, therefore, remains valid and binding.

On 10 September 2025, PGH took the following steps simultaneously:

filed the present leave application under section 410(c) of the CA 2016 before this Court;

(ii) issued a Notice to Commence Mediation dated 10 September 2025 to Emrail; and

(iii) filed an Originating Summons No. BA- 24NCC(ARB)-7-09/2025, dated 10 September 2025, pursuant to sections 11(1)(a), (b) and 50 of the Arbitration Act 2005 (Section 11 OS), and an ex parte injunction application in the Section 11 OS at the High Court at Shah Alam (SAHC) against Emrail.

On 19 September 2025, the SAHC granted an ex parte interim injunction preventing Emrail from terminating the Letter of Award and the Letter of Undertaking.

However, on 2 October 2025, the SAHC set aside the ex parte interim injunction, dismissed the injunction application, and dismissed the Section 11 OS in limine. On 14 October 2025, PGH appealed against those decisions, and the appeals were fixed for hearing on 9 April 2026 at the Court of Appeal (Injunction Appeals).

On 19 November 2025, PGH filed an application under section 44 of the Courts of Judicature Act 1964 for interim preservation orders in the Injunction Appeals. On 22 January 2026, the Court of Appeal allowed PGH’s motion under section 44 of the Courts of Judicature Act 1964 for an interim preservation order, pending the disposal of PGH’s appeals. The Court of Appeal’s order was made subject to, among other conditions, leave being granted by this Court.

PGH argued that by granting those orders subject to leave from this Court, the Court of Appeal recognised that leave nunc pro tunc was capable of being granted by this Court.

On 28 January 2026, PGH issued a Notice of Arbitration to Emrail. PGH contended that Emrail has disputed the arbitration and has ignored the ADR proceedings, contrary to Clause 4 of the Letter of Award. Is PGH’s Application Bona Fide?

I am satisfied that PGH’s application is made in good faith. PGH filed the present leave application on the same day, immediately before filing the Section 11 OS and the injunction application in the SAHC. This demonstrates that PGH was aware of the requirement for leave from the outset and did not deliberately seek to circumvent the moratorium.

Based on the documentary evidence before this Court, PGH has established that it could not wait to obtain leave because of the genuine and pressing urgency it faced. Between 30 and 31 August 2025, Emrail communicated its intention to award the subcontract works to a third party, thereby creating a risk that this intention would destroy the very subject matter of the intended ADR proceedings. Had PGH waited, the dispute would have been rendered moot before it even began. Therefore, I find that the urgency was real and the risk was imminent.

This mirrors the situation described by the English High Court in Re Saunders (a bankrupt); Re Bearman (a bankrupt) [1997] Ch 60, where it was observed that denying retrospective leave in cases of genuine urgency, such as when Mareva or Anton Piller relief is required, would be unjust, particularly where the Court would have granted leave had the application been made in time. The English High Court made the following findings: “Other difficulties are pointed to. Suppose a plaintiff has good reason to take urgent steps ex parte and without any notice at all of the intention to do so being given to the other side, as is common enough where, say, Mareva or Anton Piller relief is sought. ... In such cases, does a plaintiff find his Mareva or Anton Piller order undone because no prior leave to proceed was granted? It would not, perhaps, even suffice if the leave had been applied for. It would need to have been granted. Where, asks Mr. Davies, would be the justice of a court, such as some county courts, not having a jurisdiction in bankruptcy finding itself very willing to grant urgent relief but unable to do so because it could not grant the necessary leave to commence proceedings? It is not as if the granting of leave puts further conduct outside the court's control. What are in issue here are proceedings, matters inherently within the control of the courts in which they are pursued. It is not possible to detect any weakening in the court's control if, in cases where it would have granted leave had it been asked in time, it elects later to grant it.” [emphasis added]

The English High Court further considered whether granting nunc pro tunc leave would undermine the purpose of statutory provisions requiring leave, and held as follows: “As to whether the possibility of retrospective leave jeopardises the purposes of the section, a whole century of experience of such leave being available in the Commonwealth provides no example of any such jeopardy, nor do I see any such jeopardy as likely to ensue here, nor did Lord Coulsfield in the long citation from Carr v. British International Helicopters Ltd. [1994] I.C.R. 18, 30 which I have cited above.” [emphasis added]

Similarly, in Reid v Australian Capital Territory [2025] ACTSC 201, leave nunc pro tunc was granted because proceedings had to be commenced urgently to avoid the limitation period expiring. PGH’s situation is analogous: it had to act urgently or risk losing the ability to protect its rights altogether.

I therefore find this application bona fide. Is There a Prima Facie Case Against Emrail?

Based on the background facts of this case and the four pertinent documents presented by PGH, namely the Letter of Award to PGH from Emrail dated 29 May 2025, the Letter of Award from MOT to Emrail dated 6 August 2025, the letter dated 18 August 2025 from PGH to Emrail, and the Letter of Undertaking dated 29 August 2025, I am satisfied that PGH has established a prima facie case.

I must emphasise at the outset that, at this stage, I am not making any findings on the merits of the substantive dispute between PGH and Emrail. That is a matter for the arbitral tribunal and, where relevant, the courts seized of the Section 11

My task here is limited to determining whether there is a prima facie case, that is, whether PGH’s claim against Emrail is genuine, arguable, and not frivolous or vexatious. I find that it is.

On the face of the materials before me, the following matters are apparent. First, Emrail issued a Letter of Award to PGH, appointing PGH as the sole subcontractor for the Project at RM145,300.000.00. Second, Emrail thereafter issued an irrevocable Letter of Undertaking to PGH on 29 August 2025, unconditionally undertaking, among other things, that the subcontract works would not be affected or suspended for any reason. Third, within days of issuing the Letter of Undertaking, Emrail informed PGH that it intended to award the subcontract works to a third party instead. Fourth, the Letter of Award has at no point been terminated by written notice as provided under Clause 3.2 of that document.

Whether the Letter of Award had become unconditional upon MOT's award of the main contract; whether Emrail's conduct amounted to a breach of the Letter of Award or the Letter of Undertaking; whether the Letter of Undertaking was subject to conditions; and whether Emrail can rely on any such conditions are matters of substance that will fall to be determined in the arbitration and/or the pending Court Proceedings. I make no findings on any of these questions.

For the limited purpose of this leave application, I find that PGH’s claim is not plainly unsustainable. There is a genuine dispute between the parties arising from a series of commercial documents which, on their face, create at least an arguable basis for PGH’s claim. There are also disputes of fact and law, including issues raised by Emrail in its defence, that are eminently triable. That is sufficient to make out a prima facie case at this stage.

I also note that PGH has alleged that PGH has advanced RM630,000.00 to Emrail as a loan, which forms part of the claim to be ventilated in the ADR proceedings.

Therefore, I am satisfied that PGH has a genuine and arguable case that warrants the grant of leave. Can the Judicial Manager Deal with These Issues?

No. The issues in dispute, namely whether Emrail is liable for breach of the Letter of Award and the Letter of Undertaking, and, if so, the quantum of damages, have not been adjudicated upon. There is therefore no quantified or enforceable debt that a Judicial Manager, if appointed, could deal with at this stage.

As the Supreme Court of Victoria held in Battiston v Maiella Construction Pty Ltd [1967] VR 349, a party in PGH’s position can obtain a provable debt against the company only by pursuing its claim to judgment or settlement in the relevant proceedings. Until that is done, there is nothing concrete for the Judicial Manager to work with.

This reasoning was adopted by the High Court in Millenium Mall Sdn Bhd v Siew Chee Kok & Ors (supra), where leave was granted on the basis that determining the relevant contractual issue would assist the Judicial Manager in the company’s restructuring and rehabilitation. The same logic applies here: determining Email’s liability under the Letter of Award and Letter of Undertaking would assist any future Judicial Manager (if a JM order is granted) in assessing Emrail’s true financial position and in formulating an effective restructuring plan. Will the Proceedings Impede the Judicial Management Process?

I am of the view that it will not. The subcontract works for which PGH was engaged are intended to generate income and revenue for Emrail through the Project, a government contract worth RM185.743,000.00. PGH is not seeking to wind up Emrail or to enforce a judgment debt. PGH is seeking to give effect to contractual rights that PGH contends Emrail conferred upon it.

On the contrary, allowing PGH to proceed with the ADR and establish its rights may well assist Emrail’s rehabilitation by clarifying the extent of Emrail’s liabilities and potentially unlocking the Project’s economic benefits for Emrail’s estate. Preventing PGH from proceeding would leave the matter in limbo and could impede the Judicial Manager's ability to properly evaluate and restructure Emrail’s affairs.

Novabrite argued that granting leave would “steal a march” on other creditors and impose an unfair financial burden on Emrail in defending the Proceedings. I do not accept this.

PGH’s claim is not a simple money claim. It is fundamentally a claim to enforce a contractual right to be appointed as a subcontractor for a substantial government project.

Even after leave is granted, PGH’s claim remains subject to proof in the ADR proceedings. It is not elevated above the claims of secured creditors. If Emrail successfully defends the Proceedings, it will be entitled to recover its costs from PGH.

Novabrite’s reliance on Exxobrite Sdn Bhd v Value Plus Industries Sdn Bhd [2022] 1 LNS 1781 is misplaced. In that case, the creditor issued a statutory notice of demand without seeking leave of the Court under section 411(4)(c) of the CA 2016, as a step towards winding up the company. That step directly pressured the company to pay and conferred an advantage over other creditors. PGH is not seeking to wind up Emrail or to obtain a preferential payment. PGH is seeking to ventilate its contractual rights in ADR proceedings, a materially different situation.

Having weighed the competing interests, I find the balance firmly tips in PGH’s favour.

If leave is not granted, PGH will be left without any avenue to enforce its rights under the Letter of Award and the Letter of Undertaking. Any attempt by PGH to pursue those rights in any forum would be met with the technical objection that it had not obtained leave. PGH would be effectively shut out of the judicial process, not because its claim lacks merit, but because of a procedural technicality.

That outcome would be unjust. As the English High Court observed in Re Saunders (supra), denying retrospective leave entirely in cases requiring urgent action creates practical inconveniences and injustices that the legislature plainly did not intend. I respectfully agree.

Therefore, I find that the loss and prejudice to PGH if leave is refused are real, serious and irremediable. I find this factor strongly in PGH’s favour.

Emrail contended that PGH’s present application constitutes a collateral attack on the SAHC’s decisions dated 2 October 2025 and 5 November 2025. I disagree.

The application before this Court is for leave nunc pro tunc under section 410(c) of the CA 2016. That is a distinct question from those before the SAHC. The SAHC did not have an application for leave nunc pro tunc before it. It was dealing with the return date of an ex parte injunction and the Section 11 OS.

The SAHC's decision on 2 October 2025 simply held that those proceedings could not be maintained without prior leave under section 410(c) of the CA 2016. Any observations by the SAHC on whether leave nunc pro tunc could be granted were, at most, obiter dicta, since the leave application was before this Court, not the SAHC.

Further, this Court and the SAHC are courts of coordinate jurisdiction. This Court is not bound by the SAHC’s decisions (see Theow Say Kow @ Teoh Kiang Seng, Henry & Anor v Teoh Kiang Hong & Ors and another suit [2014] 9 MLJ 32).

As for Emrail's contention that this Court is functus officio or that the matter is sub judice: these arguments are plainly without merit. This Court has never made any decision on PGH’s leave application. There is therefore no decision for this Court to be functus officio in relation to. The Court of Appeal in the pending appeals is not determining the leave application; it is determining whether the SAHC was correct in setting aside the injunction and dismissing the Section 11 OS. These are entirely distinct matters.

Furthermore, it is beyond dispute that this Court, being the JM Court, is vested with the power and jurisdiction to hear and determine PGH’s application for leave.

For the reasons stated above, I ordered that PGH’s application in its Amended Notice of Motion in Enclosure 178 be allowed, subject to the condition that if PGH is successful in its arbitration and any monetary award is made in PGH’s favour, PGH shall then be required to obtain leave from the Judicial Management Court for the purposes of enforcement of the award if the Judicial Management proceedings are still pending and/or if a Judicial Management order is made. Emrail and Novabrite to pay costs of RM30,000 each to PGH forthwith.

Following delivery of this Court’s decision, learned counsel for Emrail informed the Court that she had instructions from her client to file an appeal against that decision. Accordingly, she made an oral application for a stay of execution and a stay of the operation and effect of this Court’s order, pending the filing and disposal of Emrail’s intended appeal before the Court of Appeal.

The oral submissions on the present leave application were heard on 30 and 31 March 2026. Given the urgency of the matter, the decision was fixed for delivery on 7 April 2026, as PGH’s appeals before the Court of Appeal were scheduled to be heard on 9 April 2026.

Having considered the parties’ submissions, I agreed with the learned counsel for PGH that this Court’s order did not involve any monetary sum or any order capable of execution in the conventional sense. In the circumstances, an order for stay of execution was neither appropriate nor necessary.

As for the application to stay the operation and effect of this Court’s order pending appeal, I was not persuaded that a sufficient basis had been established to warrant the grant of such relief. Accordingly, Emrail’s oral application for a stay of execution and for a stay of the operation and effect of this Court’s order pending the filing and disposal of its intended appeal to the Court of Appeal was dismissed. Dated 1 June 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA KUALA LUMPUR To the parties’ solicitors: For the Applicant : Irwin Lo & Chan Yi Zheng (Messrs Lo Chambers) For the Respondent : Ooi Suan Kim & Boo Honn Chin (Messrs O S Kim & Associates) For the Aggrieved Party : Steven Thiru, Priscilla Faith Lim, Alvin Oh Seong Yew & Chong Jen Hui (Messrs Sia Siew Mun & Co.)