Southeast Asia Special Asset Management Berhad v Tan Sri Dato' Paduka (Dr.) Ting Pek Khiing (WA-29PB-1581-10/2024)

These Grounds concern Encl 1, the application of the Applicant, Southeast Asia Special Asset Management Berhad (“SEASAM”). Encl 1 prays for, inter alia: a. an Order that further powers be conferred upon Dato’ Raveendra Kumar a/l Nathan as special manager (“Special Manager”) over the estate of the late Tan Sri Dato’ Paduka (Dr.) Ting Pek Khiing (“the Bankrupt”); and b. a Declaration that the remuneration of the Special Manager shall be calculated based on Table C of the Bankruptcy (Fees) Rules, 1969, and such other ancillary Orders to enable the said Special Manager to perform his power and duties.

The contents of these Grounds are as set out below: Contents Para No INTRODUCTION 3 - 5 The SM Order & the Special Manager 6 - 15 The Updates 16 - 29 THE ADDITIONAL POWERS 30 - 32 THE DGI’S CASE 33 - 34 Res Judicata & Conflicting Decisions 35 - 43 CONCLUSION 44 - 45

On 28.10.2010, Adjudicating and Receiving Orders (“the Bankruptcy Orders”) were made against the Bankrupt.

Given that the administration of the Bankrupt’s Estate had stretched from 28.10.2010 until 2022, a period of 12 years, and little was achieved, the Applicant felt that more pro-active steps were needed.

Thus, on 26.8.2022, SEASAM made an application for an Order that Dato’ Raveendra Kumar be appointed as Special Manager over the estate of the Bankrupt (“the Estate”) in Kuala Lumpur High Court Post-Bankruptcy No. WA-29PB- 866-08/2022 (see Encl 2, Exhibit SEASAM-1, pp 19 to 36).

Justice Murad obviously felt that there were sufficient commercial reasons why there was a need for the appointment of a Special Manager with broad powers.

By an Order dated 27.3.2024 (“the SM Order”), Justice Murad granted the appointment with powers similar to the powers of the DGI under ss 31, 72 and 73 of the Bankruptcy Act, 1967 (“BA”).

Under the SM Order, Dato’ Raveendra was appointed as the Special Manager for the following purposes: a. to protect, preserve, manage and realise the properties of the Bankrupt that are vested in the Director General of Insolvency (“DGI”) by virtue of ss. 8 and 24(4) of the BA; b. to collect, get in and receive as soon as reasonably practicable any sums or debts which the Special Manager has reasonable grounds to believe are owed or payable to the Bankrupt; c. to undertake investigations on the conduct of the Bankrupt and his property and dealings; d. to duly administer the Estate; and e. to undertake and carry out all such enquiries and acts as the Special Manager deems reasonable for the purposes of ensuring compliance with the purposes provided for therein.

There is no clear provision in the BA and the BR which prescribe the duties of the Special Manager in managing the Estate. There is no clear law on this issue. What is sought are powers similar to that of the DGI.

Appendix A (Encl 3 Exhibit SEASAM-2) to the SM Order set out a list of the powers and duties granted to the Special Manager. They include the following: a. to take part in the ongoing examination of witnesses pursuant to s. 31 of the BA or such other future examinations as may be ordered by Court; b. to undertake investigations on the conduct of the Bankrupt and his property and dealings; c. to collect, get in and receive in the name of the DGI the property of the Bankrupt; and d. with the sanction of Court, to deal with any property to which the Bankrupt is beneficially entitled sui juris, in the same manner as the Bankrupt might have dealt with it; and any such dealing with any property to which the Bankrupt is before his discharge so entitled shall, although the Bankrupt is dead at the time of that dealing, be as valid and have the same operation as though the Bankrupt was then alive.

More importantly, the SM Order further provided that the Special Manager shall be at liberty to apply to Court to expand the scope of his appointment and the powers conferred upon him by the SM Order. Para (2) of the SM Order provides:

Para 2(b) of the SM Order (supra) makes it clear that the Court may expand the scope and powers of the Special Manager.

These powers may be expanded in the same way that the powers of a Court appointed receiver and manager may be expanded. Counsel for SEASAM relies on the Singapore decision on receivers and managers in Tan Holdings Pte Ltd (in creditors’ voluntary liquidation) v Prosperity Steel (Asia) Co Ltd and others [2012] 1 SLR 80 citing in turn, Lee Kuan Yew v Tang Liang Hong [1997] 1 SLR(R) 328, at [7]: “7… His main function is the identification, collection and protection or preservation of property which he must hold to abide by the outcome of the action in which he is appointed. A receiver appointed by a court derives his powers from the terms of the order appointing him. If necessary, he may apply to court for further powers and directions. [emphasis added].”

Similarly, the powers of a provisional (now ‘interim’) liquidator may also be expanded, if necessary, see the Scottish decision of Levy v Napier (1962) SC 468.

In my mind, the expansion of the powers of the Special Manager may be ordered if the additional powers are necessary to allow him to fulfil his purpose and for the purposes of the administration of the Estate.

The updates outlined by the Special Manager’s letter dated 2.10.2024 do show that further powers are needed, see Encl. 3, Exhibit SEASAM-3 at pp. 590 to 592.

The DGI had not provided the necessary books and accounts to SEASAM upon its written request. By a letter dated 11.3.2024, SEASAM’s solicitors requested for the following documents from the DGI, see Encl. 3, Exhibit SEASAM-4 at pp. 594 to 595: a. the complete minutes of the creditors’ meeting on 4.3.2020; b. the report by Jabatan Penilaian Dan Perkhidmatan Harta (“JPPH”) on 5 plots of land belonging to the Bankrupt; and c. the latest account of receipts and payments for the purpose of the administration of the estate of the Bankrupt.

S. 78(1) of the BA provides that the DGI shall keep an account of his receipts and payments, while s. 80 provides that the DGI shall keep proper books, containing the minutes of meetings. The creditors are entitled to examine these documents and Rule 250 of the Bankruptcy Rules (“BR”) gives the creditors the right to obtain copies of the accounts and the cash book.

The DGI was obliged to provide such books and accounts under ss 78 and 80 of the BA and Rule 250 of the BR on request of a creditor. It appears that he failed to do so.

The Special Manager met with the DGI’s representatives on 17.5.2024 and was informed that the DGI is currently in possession of some RM1 million in cash and in control of 3 plots of land in Sarikel and Kuching, Sarawak. However, no dividends have been paid since 2018.

The notes of the examination taken pursuant to s. 31 of the BA (“s. 31 Examination”), show that some of the examinees admitted that they were nominee directors and/or shareholders of companies related to the Bankrupt. Some legal action is therefore necessary to recover these companies and/or their assets from the nominees, if they are indeed acting on behalf of the Bankrupt.

However, the SM Order does not confer powers on the Special Manager to commence legal proceedings to recover the assets of the Bankrupt or to appoint solicitors or other agents. This is a real shortcoming given the information obtained in the s. 31 Examination.

Further, the Special Manager would require funds to initiate these recovery actions. He requested SEASAM to make an advance, which would be repaid to SEASAM in priority from the assets of the Bankrupt once available.

The Special Manager has also identified other individuals who should be examined for the purpose of his investigations

There has been no disclosure of the property of the Bankrupt since the s. 31 Examination. In fact, the s. 31 Examination has yet to be completed. The SM should be allowed to continue this based on the information obtained and the witnesses examined thus far.

SEASAM complains that despite having participated in the s. 31 Examination and having all this information, the DGI had taken little or no action against these alleged nominees or agents of the Bankrupt. This must have been frustrating for

SEASAM submits that conferring further powers on the Special Manager to inspect the books or to obtain the accounts of the receipts and payments by the DGI, would be beneficial and necessary to allow the Special Manager to advance the administration of the Estate.

The powers under the SM Order are limited. They do not allow the Special Manager to declare and distribute dividends to creditors and make provision for his remuneration. Such powers are necessary. As stated above, it should be noted that notwithstanding there is an excess of RM1 million in the estate account, the DGI has not declared any dividends since April 2018, see para 20 of the affidavit of Ho Yoke Teng affirmed on 26.8.2022 filed in WA-29PB-866-08/2022 at Encl. 2, Exhibit SEASAM-1 pp. 56 at 69.

In the circumstances, the Special Manager should be given access and control of the monies standing to the credit of the Estate to maximise recovery of the Bankrupt’s assets.

For the reasons set out above, SEASAM applied for the following additional powers to be conferred upon the Special Manager comprising: a. full powers to bring, institute or defend any action or other legal proceedings in the name and on behalf of the DGI, against and/or by: b. any parties or persons who have in their possession, custody or power property belonging legally and / or beneficially to the Bankrupt; and/or c. trustees and / or nominees of the Bankrupt, d. for the recovery of property belonging to the Estate; i) the power to declare and distribute dividends amongst the creditors who have proven their debts; ii) the power to inspect all proper books kept by the DGI, whether caused by him to be made entries or minutes of proceedings at meetings and of such other matters as are prescribed, in relation to the bankruptcy of the Bankrupt; iii) the power to obtain a copy of the accounts of the receipts and payments by the DGI, or the accounts or any part thereof relating to the estate as shown by the cash book up to date; iv) the power to have access and full control of all monies standing to the credit of the Bankrupt’s estate, and to utilise the same to defray all costs and expenses pertaining to the administration and recovery of the Bankrupt’s estate, including but not limited to the Special Manager’s remuneration, tax, expenses and disbursements; and v) in exercising his powers under (i) above or in discharging any of his duties pursuant to the SM Order, the said Special Manager be given the power to appoint solicitors or such other agents to assist him in his duties, and the fees and expenses of such solicitors or such other agents be paid out of the Bankrupt’s estate. vi) SEASAM also sought a Declaration that the remuneration of the Special Manager shall be calculated based on Table C of the Bankruptcy (Fees) Rules, 1969. I also accept that this scale seems fair as this would be the fees that would have been paid to the DGI for his efforts.

Given the inactivity of the DGI, I accept that the additional powers sought are necessary for the Special Manager to improve the administration of the Estate for the benefit of the creditors in general.

As such, I find that these additional powers of the Special Manager are in the best interest of the creditors in general, and are consistent with the SM Order.

The DGI resists Encl

His case, in essence, is that only the DGI may appoint the Special Manager under s. 12 of the BA to manage the Estate and the business of the Bankrupt through powers conferred by the DGI.

The DGI submits that if this application is allowed, it will alter the statutory duty and rights of the DGI as provided under the

The DCI’s argument goes to the very heart of the SM Order and Justice Murad’s decision to make the SM Order. But there was no appeal from the SM Order. As such, this issue is res judicata and such arguments cannot be taken in these proceedings.

SIS Forum (M) & Ors v Jawatankuasa Fatwa Negeri Selangor & Ors [2018] 3 MLJ 706, is of direct application. The case concerned the judicial review of a fatwa. The appellants argued that the fatwa contravened the Federal Constitution. A preliminary objection was raised that the High Court had no jurisdiction to hear the matter as it was within the jurisdiction of the Shariah Court. The High Court judge dismissed the respondent’s preliminary objection and ordered the case to be heard on its merits. However, before the substantive application could be heard, the case was taken over by another High Court judge. The respondents raised the preliminary objection again and this time it was allowed. The appellants’ application for judicial review was dismissed.

On appeal, the issue was whether the second Judge was correct in reversing the decision of the first Judge. The Court of Appeal held that the second Judge could not re-open the issue of jurisdiction, which the first Judge had decided. The issue was res judicata. Further, a court of co-ordinate jurisdiction had no power to override the decision of another court of co-ordinate jurisdiction. The Court said: “[13] In arriving at this conclusion, this court endorsed the decision of the High Court in Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 where Sharma J said at p 76: In Satyadhyan Ghosel & Ors v Sint Deorajin Dobi and another AIR 1960 SC 941, the statement of law on the subject is given thus: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter — whether on a question of fact or a question of law — has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party is allowed in a future suit or proceeding between the same parties to canvas the matter again. This principle of res judicata is embodied in relation to suits in s 11 of the Code of Civil Procedure; but even where s 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit (see Peareth v Marriot (1883) 22 Ch D 182, Hook v Administrator-General of Bengal & Ors LR 48 IA 187 and Re Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another [1936] MLJ 141 at pp 147–151). Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication (see Louis Dreyfus v Aruna Chalayya LR 58 LA 381. (Emphasis added.)

The Court of Appeal held in conclusion: “[22] … With due respect to the learned judge, her decision effectively means that the High Court had rendered two inconsistent and irreconcilable decisions on the same matter in the same proceedings involving the same parties. [23] It is trite law that a court of co-ordinate jurisdiction has no power to override the decision of another court of co-ordinate jurisdiction.”

It seems obvious that Justice Murad who granted the SM Order clearly thought that he had the jurisdiction and power to appoint the SM for the purposes and with the powers in Appendix A.

Indeed, it appears that the DGI did challenge the jurisdiction of the Court before Justice Murad, see para 16 of Encl 16 filed in Justice Murad’s Court. However, no appeal was filed against the SM Order. And indeed, the SM has exercised the powers in Appendix A.

It is clear that Murad J had decided, implicitly or otherwise, that he had the jurisdiction to appoint a special manager clothed with the necessary powers in Appendix A. If I were to accept the arguments of the DGI and hold that I had no power to grant Encl 1 on the basis that only the DGI had the power to appoint the Special Manager and to confer the necessary powers on him, that would directly contradict the decision of Justice Murad.

That I cannot do. And further, following the Court of Appeal in SIS Forum (M) (supra), the issue of the lack of jurisdiction to make the SM Order is now res judicata. The DGI’s argument fails.

Finally, it was also argued that notwithstanding the SM Order, the powers of the Special Manager should be further discussed between the Special Manager and the DGI before a further order is made. However, this is not a mandatory requirement. It goes to the exercise of my discretion to grant further powers to the Special Manager if the circumstances warrant it.

I must emphasise the following. Given that the assets of the Bankrupt are vested in the DGI and notwithstanding the SM Order, the DGI does retain supervisory control over the Special Manager, the assets of the Bankrupt and the Estate. The SM Order does not and cannot divest the DGI of his powers conferred by statute. And this decision does not intend to change this. That said, the delay in the administration of the Estate should not be prolonged.

As such, I granted Encl 1 but only in terms of prayer (1)(a) to

(e), prayers (2) and (6). But I also give liberty to re-apply for prayers (3), (4) and (5). Dated the 18th day of November 2025 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Case References: • Lee Kuan Yew v Tang Liang Hong [1997] 1 SLR(R) 328 • Levy v Napier (1962) SC 468 • SIS Forum (M) & Ors v Jawatankuasa Fatwa Negeri Selangor & Ors [2018] 3 MLJ 706 • Tan Holdings Pte Ltd (in creditors’ voluntary liquidation) v Prosperity Steel (Asia) Co Ltd and others [2012] 1 SLR 80 Counsel for the Judgment Debtor: Wardah Nasuha & Franky Irwan Jabatan Insolvensi Malaysia Wilayah Persekutuan Kuala Lumpur (Kuala Lumpur) Counsel for the Judgment Creditor: Solicitors: Micael Yai Messrs. Tommy Thomas (Kuala Lumpur) Legislation References: • Bankruptcy (Fees) Rules, 1969 • Bankruptcy Act, 1967 • Bankruptcy Rules, 1969 • Rule 250 of the Bankruptcy Rules Decision Date: 6th October 2025