Shencourt Sdn Bhd v Shencourt Properties Sdn Bhd (WA-28PW-311-06/2022)

MAY DE SILVA A/P JOHN DE SILVA …. PETITIONER AND SHENCOURT PROPERTIES SDN BHD ...RESPONDENT AND SHENCOURT SDN BHD …...APPLICANT GROUNDS OF DECISION (DISMISSING THE APPLICANT’S APPEAL)

This is the Applicant’s appeal against the decision by the liquidator rejecting the proof of debt filed by the Applicant dated 30-5-2022 pursuant to Section 517 of the Companies Act 2016 and Rule 93 of the Companies (Winding-Up) Rules 1972. The Proof of Debt was for the sum of RM 6, 255, 789.93. B. Brief Facts 2. Shencourt Properties Sdn Bhd was wound up by an order of Court on 19-4-2002 on the application filed by the Petitioners above named.

The Court had earlier appointed one Ricky Thong from Messrs Thong & Associates as the liquidator of the company on 4-2-20204. This appointment was subsequently supplemented by an additional order of the High Court dated 26-4-2011 to appoint Dato Narendra Kumar Jasani from Messrs Grant Thornton Consulting Sdn Bhd as co-liquidator.

The Applicant did file an earlier Proof of Debt form for the same amount i.e. RM 6, 255, 789.93 on 19-4-2017. This was rejected by the then liquidators. Messrs Kasim, Tadin, Wai & Co had informed Messrs Bodipalar Ponnudurai De Silva and the Applicant via letter dated 16-1- 2018 that the said Proof of Debt form was rejected by the liquidators. The Notice of Rejection dated 15-1-2018 was also attached to the said letter. The Applicant concedes that it was made aware of this decision.

The Applicant then filed an application to remove the previous liquidators and appoint the Official Assignee in their stead to act as liquidator for the said company. This was filed on 30-10-2017 in the Post Winding Up Application No: WA-28PW-172-10/2017.

This application was heard at the High Court and eventually was allowed by the Court of Appeal. The Court of Appeal in its order dated 18- 1-2019 had allowed the application and made, inter alia, the following orders: -

That the previous liquidators be removed immediately.

(ii) That the official liquidator be appointed as the liquidator for the said company and take all action with regard to the winding up process of the company.

At no material time did the Court of Appeal set aside any of the decision made by the previous liquidator. Even the rejection of the previous Proof of Debt Form filed was not set aside by the Court of Appeal or any order of Court.

The Liquidator, as part of its processes, had issued an email to the Applicant’s solicitors dated 9-4-2019 as follows: - “2. Dimaklumkan, Jabatan ini sedang dalam tindakan semakan bukti hutang yang telah difailkan oleh tuan pada 19.4.2017.

Mengikut rekod, Jabatan ini mendapati bahawa Tetuan Kassim Tadin, Wai & Co telah mengeluarkan satu surat penolakan bertarikh 17.05.2017 dan juga notis penolakan bertarikh 15.01.2018 kepada SSB (Applicant).

Sehubungan itu, mohon kerjasama pihak tuan untuk mengemukakan bukti penerimaan dokumen-dokumen bagi membolehkan tindakan selanjutnya diambil.”

The Applicant did not appeal against the earlier decision by the previous liquidator to reject the previous Proof of Debt Form. That decision although was challenged via letters and emails to the liquidator and the current liquidator, no formal appeal was filed.

The Applicant then filed a new Proof of Debt Form on 29-9-2020 for the same debt i.e RM 6, 255, 789.83. The same particulars for the alleged debt were also attached to the said form filed by the Applicant.

I also note that the liquidator had notified of the general meeting of creditors and that the Applicant was invited to file any Proof of Debt form before 19-10-2020.

The liquidator after considering the Proof of Debt Form filed dated 29-9-2020, decided to dismiss the same. The reason given was that this is the same debt claimed by the Applicant in the Proof of Debt Form dated 19-4-2017, and has been dealt with by the previous liquidator. The said debt was rejected and that there is no appeal against the said decision. There is also no order of Court that that reverses the said decision and the Applicant cannot be allowed to refile for the same debt twice. C. Applicable Law 13. The applicable law on this area is trite. This Court cannot and should not interfere with the decision of the liquidator unless it is shown that the decision was so absurd, unreasonable and that no reasonable liquidator would have acted in that way. This Court should be slow in interfering with the decision simply because it is of the view that it may have taken a different approach or opinion to those adopted by the liquidator. See Wong Sin Fan & Ors v. Ng Peak Yam & Anor [2013] 3 CLJ 17 and Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor [2007] 2 CLJ 405. Also see Sunrise Megaway Sdn Bhd v. Karthryn Ma Wai Fong [2021] 6 CLJ 39.

This Court also refers to Hew Kiang Hoe v. Shencourt Properties Sdn Bhd [2022] MLJU 2934 where Nadzarin J held: - “[10] In respect of the above, I have also duly considered the SSB's contention that the OR has recognized it as a creditor on no less than 3 occasions between 8.4.2019 and 16.3.2019, but I find from the above evidence that SSB's POD has therefore been found to have been rejected by the Previous Joint Liquidators and that the said rejection has todate not been overturned by any Court. Accordingly, SSB's POD should for all intents and purposes remain as a rejected POD and thus SSB is not a creditor of SPSB. In the circumstances, the rejection of the POD by the OR does not arise as the same has already been rejected by the Previous Joint Liquidators.” D. Decision of this Court 15. Based on the above, I find that the Liquidator did not commit any errors of fact or law that should be rectified by this Court. The decision to reject the Proof of Debt Form on the ground that they were repeat of the previous rejected Proof of Debt Form is valid and correct.

The Applicant should have either appealed against the previous decision or applied to have the said decision quashed by this Court. The Court of Appeal did not hold that the decisions made by the previous liquidators were wrong and did not hold that the previous decisions were bad in law. As such, the said decision to reject the previous Proof of Debt Form remains valid. The current liquidator cannot ignore the previous decision and allow the Applicant a second bite of the cherry.

The Applicant’s counsel suggests that her client was allowed by the current liquidator to file afresh and should have considered the new Proof of Debt Form. Even if I were to agree with the said position, the liquidator is still entitled to reject the new Proof of Debt Form if it finds that it is similar to the previous debt claimed by the Applicant. The liquidator is entitled to accept the decisions made by the previous liquidator unless there is an order of Court that set asides the same. The Applicant should have applied to have the previous decisions set aside at the time when the application to remove the previous liquidator was made. More so when in this case, the said decisions were made before the Court of Appeal agreed to remove them.

I also find that the decision made by the liquidator to reject the Proof of Debt Form was made on 30-5-2022. This Appeal was filed on 28-6-

The law requires that any appeal must be filed within 21 days but as the rejection was only received on 28-6-2022, then the said appeal was filed within time. On this issue, I side with the Applicant.

For the above reasons, the appeal filed by the Applicant is dismissed. Dated 29 April 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 Counsel: