Sks Integrated Group Sdn Bhd v Sks Foam (M) Sdn Bhd (BA-28PW-22-01/2025)

1 MLJ 293 And In the matter of the Vesting Order dated 29.05.2015 RE: SKS FOAM (M) SDN BHD (IN LIQUIDATION) (COMPANY NO: 191363-U) GROUNDS OF DECISION (Encl. 1 — Leave Application to Set Aside Vesting Order) Introduction 1. Before this Court is the Applicant's motion in Enclosure 1 seeking leave under section 471 of the Companies Act 2016 (“CA 2016’) to commence proceedings for the purpose of setting aside a vesting order made by this Court on 29 May 2015 (“the Vesting Order’). The Vesting Order was obtained by the Liquidator of the Respondent pursuant to an application within the winding-up cause. It declared that the transfer of ownership of Lot 15842, GM 16606, Mukim Kapar, Klang (“the Property”) from the Respondent to the Applicant was unlawful and vested the Property back in the Respondent. The Applicant contends that the Vesting Order is invalid for contravening section 295 of the Companies Act 1965, that it was 2 obtained without full disclosure, and that it is a nullity by reason of the subsequent setting aside of the winding-up order. The Respondent opposes the application, submitting that the matter is barred by res judicata, that the Vesting Order has attained finality after multiple challenges up to the Federal Court, and that the present application is an abuse of process. Having reviewed the submissions of the parties, the relevant evidence, and the applicable law, | hold that this application ought to be dismissed. My reasons are set out below. Background and Procedural History 6. The Vesting Order was granted on 29 May 2015 by this Court. Thereafter, the Applicant made no fewer than four attempts to set aside the order, including Enclosure 79 in the winding-up cause, and pursued appeals to the Court of Appeal and Federal Court. Each attempt was dismissed or struck out, and the most recent application for review in the Federal Court was dismissed on 5 February 2024. The effect is that the Vesting Order remains valid and binding. The Respondent is vested with beneficial ownership of the Property as part of its liquidation estate. Issues for Determination 8. The issues for determination are: (i) | whether the Applicant is entitled to seek leave under section 471 CA 2016 to commence fresh proceedings to set aside the Vesting Order; and (ii) whether the principles of res judicata, issue estoppel and finality of litigation bar the present application. Applicable Principles 9. Section 471 CA 2016 prohibits any action or proceeding being commenced against a company in liquidation without leave of court. The guiding principles are set out in Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886, which requires the Applicant to show: {i) that the claim cannot be adequately dealt with in the winding-up court; and (ii) | that the Applicant has established a prima facie case. 10. The doctrine of res judicata prevents matters, which are already decided or which ought to have been raised in earlier proceedings, to be relitigated. This encompasses both cause of action estoppel and issue estoppel (Asia Commercial Finance v Kawai Teliti Sdn Bhd; Yat Tung Investment Co v Dae Heng Bank). 11. The Federal Court in Badiaddin v Arab Malaysian Finance Berhad

1 MLJ 293 recognises that an order contravening a substantive statutory provision may be treated as a nullity. However, such a challenge must be pursued in the same proceedings in which the order was made, not by way of a collateral attack. Analysis and Findings Res Judicata and Finality 12. The Vesting Order has been repeatedly challenged by the Applicant in this Court, in the Court of Appeal and in the Federal Court. Those challenges have all failed. The order therefore stands as a final determination of ownership of the Property within the winding- up cause. 13. To now permit a fresh suit to set aside the Vesting Order would undermine the principle of finality in litigation and constitute an abuse of process. The law cannot allow perpetual relitigation of a concluded order. Badiaddin Principle 14. The Applicant seeks to rely on Badiaddin. However, Badiaddin does not assist the Applicant. If the order is alleged to contravene section 295 CA 1965, the proper avenue is an application within the same cause in which the order was made. The Applicant has already done so in Enclosure 79, and that application was dismissed. Multiple appeals have also been exhausted. 15. To invoke Badiaddin now as a basis for a collateral fresh suit is misconceived. Conclusion 16. The Applicant has failed to meet the threshold for leave under section 471 CA 2016 in this application. The claim it seeks to advance is plainly barred by res judicata and amounts to a collateral attack on a final court order. 17. Accordingly, the application in Enclosure 1 is dismissed with costs of RM10, 000.00 Addendum: Consistency of Decisions in PW-28PW-22-01/2025 and PW-28PW-264-10/2023 18. In arriving at my decision to dismiss the present application (“PW22”), | am conscious that this Court had earlier, in PW-28PW- 264-10/2023 (“PW264’), allowed the Applicant’s motion for leave under section 471 of the Companies Act 2016. Both applications involve the same property and the same parties. It is therefore appropriate to clarify how the two decisions are to be read consistently. 19. The distinction lies in the nature of the reliefs sought. In PW22, the Applicant seeks to commence proceedings to set aside the Vesting Order of 29 May 2015. That order has already been challenged within the winding-up cause and before the appellate courts up to the Federal Court. It has thereby attained finality. The present attempt amounts to a collateral attack on a concluded order. For that reason, the Court dismissed PW22 on grounds of res judicata and finality. 20. In PW264, however, the reliefs contemplated were not to set aside the Vesting Order but to commence a fresh civil suit to determine issues of ownership and the validity of the Sale and Purchase Agreement dated 6 July 2010. This Court found that such issues had never been adjudicated upon their merits and that the Applicant had demonstrated a prima facie case warranting a trial. For that limited purpose, leave was granted under section 471. 21. The two outcomes are therefore not inconsistent. PW22 preserves the binding effect of the Vesting Order within the winding-up cause, while PW264 preserves the Applicant’s right of access to court to ventilate claims not previously adjudicated. The Respondent remains entitled to raise all available defences, including res judicata, in the substantive proceedings authorised by PW264. 22, The combined effect of both rulings is to strike an appropriate balance between the competing principles of judicial finality and access to justice. Dated: 12™ SEPTEMBER 2025 RAJA ROZELA BINTI RAJA TORAN Judicial Commissioner Muamalat and Insolvency Shah Ala COUNSEL Solicitor for the Appellant : Messrs Kamil Hashim Raj & Lim Unit B-9-11, Phileo Damansara 1, No.9, Jalan 16/11, Off Jalan Damansara, 46350 Petaling Jaya, Selangor Email : pji@mykhrl.com Phone No : 03-7932 3204 4. Encik Arun Ganesh Boopalan Solicitor for the Respondent : Messrs Sukhwinder Singh N Mahinder Singh No.6-3-2(Level 2), Jalan Setia Prima Q , U13/Q, Section U13, Bandar Setia Alam 40170 Shah Alam, Selangor Email : ssnmslaw@gmail.com Phone No : 016 6002323 1. Encik Sukhwinder Singh a/l N Mahinder Singh