Ooi Lee Wei (a Contributory of the Respondent) v Hup Huat Construction and Engineering Sdn. Bhd. (in Liquidation) (RA-28PW-4-05/2023)

This is an appeal by the Liquidator of the Respondent, Hup Huat Construction and Engineering Sdn Bhd (In Liquidation) against the decision of this Court in dismissing the Liquidator’s interlocutory application in Forms of Summons (Liquidator’s Application to admit Enclosure 50, Affidavit of Leong Ying Hoe and to seek leave to file further Affidavit) in Enclosure 55.

The Applicant in this case is a contributory and one of the shareholders of the Respondent, namely Hup Huat Construction and Engineering Sdn Bhd.

The Liquidator on the other hand is the private liquidator of Hup Huat Construction and Engineering Sdn Bhd (In Liquidation) appointed by this Court by Winding-Up Order dated 2/3/2023.

Vide an Amended Form of Summons in Enclosure 11, the Applicant seeks for the following orders –

that Ooi Lee Wei (NRIC No: 770220-09-5197) be granted with leave to intervene and proceed with this application filed herein, if necessary;

that a Consent Judgment to be entered to stay the Order for Winding Up by the Court dated 2.3.2023;

that no order as to costs; and

such other and/or further reliefs this Honourable Court deems just and fair. [5] Pending the hearing of the main suit in Enclosure 11, on 13/9/2023, the Liquidator filed the Liquidator’s Application in Enclosure 55 for the following orders –

that leave is to be granted in favour of the Liquidator to regularize the filing of the Affidavit of Leong Ying Hoe duly affirmed on 04.09.2023 (Enclosure 50) which was filed under Enclosure 18 (Liquidator’s Application for Stay of Proceedings) vide Post Companies (Winding Up) Application No.: RA-28PW- 4-05/2023;

that this Honourable Court admits Affidavit of Leong Ying Hoe duly affirmed on 04.09.2023 (Enclosure 50) to be taken into consideration for Enclosure 18 (Liquidator’s Application for Stay of Proceedings) vide Post Companies (Winding Up) Application

that this Honourable Court allows and admits Affidavit of Leong Ying Hoe duly affirmed on 04.09.2023 (Enclosure 50) to be taken into consideration for Enclosure 1 and/or 11 (Applicant’s Application to Stay Winding Up Order) vide Post Companies (Winding Up) Application No.: RA-28PW-4-05/2023;

that leave is also granted to the Liquidator to file a further Affidavit to state the latest discovery and development of facts pertaining to the matter;

that the costs for this application is to be cost in the cause; and

such further and/or other reliefs or orders as the Court deems fit and proper. [6] The Applicant and the Petitioner had objected to Enclosure 55. After hearing all parties, on 5/10/2023, this Court had dismissed Enclosure 55 with costs in the cause as there is no merits in the Liquidator’s Application. [7] Dissatisfied with the decision of this Court, the Liquidator had appealed against the said decision. [8] However, pending the hearing and disposal of the Liquidator’s appeal, upon hearing all parties on 11/1/2024, this Court had allowed Enclosure 11 (the main suit) for the following terms and conditions – “1. Ooi Lee Wei (NRIC No: 770220-09-5197) be granted with leave to intervene and proceed with this application filed herein;

the Winding Up Order dated 02.03.2023 granted by this Court against the Respondent (“Winding Up Order”) shall be stayed until 11.04.2024 pursuant to Section 492 of the Companies Act 2016, subject to the following conditions;

the terms of the draft Consent Order (exhibit “OLW-4” of Enclosure 2) be amended and entered as follows:

the Respondent shall pay or the Applicant shall cause the Respondent to pay the Petitioner a total sum of RM654,741.58 being the full and final settlement sum (“Settlement Sum”) in one lump-sum payment by way of a cheque within thirty (30) days from the date of this Order;

the payment of the Settlement Sum shall be secured by the Applicant’s own property with an address at No. 16, Jalan Ria, Taman Pertama, 01000 Kangar, Perlis (“Property”) as collateral for the payment and a personal guarantee by the Applicant, Mr. Ooi Lee Wei;

the Respondent shall hand-over or the Applicant shall cause the Respondent to hand-over all the following documents within thirty (30) days from the date of this Order; a. the cheque stated at paragraph (1) above in the sum of RM654,741.58; and b. the duly signed and stamped “Director’s Irrevocable Personal Guarantee & Indemnity”;

the Petitioner shall be entitled to enter a private caveat in respect of the Property for the purpose as stated at paragraph (2) above;

the management and control of the Respondent be granted to the Applicant from the date of this Order until 11.4.2024;

the Applicant be allowed to operate the Respondent’s current bank account no. 3141756216 with Public Bank Berhad at Kangar, Perlis from the date of this Order until 11.4.2024;

in the event of default on any of the payment terms and/or breach of any of the terms and conditions set out herein: a. the Petitioner shall be entitled to take necessary steps to recover any amount due and owing to the Petitioner; and b. any stay of the Winding Up Order shall immediately be ceased and/or terminated whereupon the Winding Up Order shall be reinstated and the Liquidator be allowed to execute his duties pursuant to the Winding Up Order;

upon clearance of the payment of RM654,741.58, the Petitioner shall have no objection for the Applicant or the Contributory of the Respondent to apply for termination of the Winding Up Order;

a copy of the Order herein should be lodged with Pendaftar Suruhanjaya Syarikat Malaysia within thirty (30) days from the date of this Order; and

No order as to costs.”. [9] Since the main suit in Enclosure 11 has been disposed of by this Court on 11/1/2024, this Court is of the view that the Liquidator’s appeal in Enclosure 55 has become academic. Dated : 7 February 2024 (DR. ARIK SANUSI BIN YEOP JOHARI) Judge High Court of Malaya, Kangar The State of Perlis The Solicitor’s – The Applicant’s Solicitor: Mr. Low Eu Thuan (together with Ang Jinn Fenn) Messrs. Cheong Wai Meng & Van Buerle 49, Lebuh Gereja 10200, Pulau Pinang The Petitioner’s Solicitor: Ms. Alane Neo Messrs. YY Chin & Co VO3-05-03, Designer Office VO3, Lingkaran SV, Sunway Velocity, 55100 Kuala Lumpur The Liquidator’s Solicitor: Mr Tan Eng Keat Messrs. Gan, Lee & Tan Suite 13.03, Level 13 Menara IGB, Mid Valley City