Tresenergy Sdn Bhd v 1. ) Mohd Fauzi Bin Ya'Akob (BA-22NCvC-603-12/2018)

MOHD FAUZI BIN YA’AKOB

MTC ENGINEERING SDN BHD (NO. SYARIKAT: 843778-T) ... DEFENDAN-DEFENDAN GROUNDS OF DECISION (Enclosure 80 - Preliminary Objections)

Via Enclosure 80, the Defendants seek an Order to stay the execution of a monetary judgment dated 7 August 2025 12/11/2025 09:43:59 BA-22NCvC-603-12/2018 Kand. 99 S/N GayGxZveGEqeKdYl8b3jjw (“Judgment”) pending the disposal of their appeal to the Court of Appeal.

Before the hearing of Enclosure 80, the Defendants raised two preliminary objections. The First Preliminary Objection (“1st PO”)

The Plaintiff’s affidavits in enclosures 84, 88, and 93 affirmed by Dato’ Mohd Hafidz Safari Bin Ramli (“Dato’ Hafidz”) in his capacity as a contributory, were defective because only the Official Receiver and Liquidator could affirm affidavits on behalf of the wound-up Plaintiff. The Second Preliminary Objection (“2nd PO”)

The Defendants impugned the issuance of a sanction by the Official Receiver and Liquidator through a letter dated 12 July 2023, which authorised the Plaintiff to proceed with or continue with the civil suit against the Defendants (“Sanction”). According to the Defendants, the impugned Sanction was defective, as only the Court had the authority to issue it.

I will first address the preliminary objections.

The substantive application of Enclosure 80 will be dealt with separately after I have delivered my decision on the preliminary objections. Analysis & Findings 1st PO

The Learned Counsel for the Defendants argued that:

Dato’ Hafidz did not have the authority to affirm affidavits on behalf of the Plaintiff because the Sanction was addressed to Messrs Yusfarizal Aziz & Said, not him; and

only the Official Receiver and Liquidator could affirm affidavits on behalf of the Plaintiff.

The 1st PO is devoid of merit and should be dismissed for the reasons set out below. First Reason To Dismiss The 1st PO

Although the Sanction was addressed to Messrs Yusfarizal Aziz & Said, they did not make the application for the Sanction. It was the Plaintiff’s contributory who did, as shown in paragraph 1 of the Sanction. S/N GayGxZveGEqeKdYl8b3jjw Second Reason To Dismiss The 1st PO

The Plaintiff has two contributories: Dato’ Hafidz and Mohd Hafidz Safari Resources Sdn Bhd (“Hafidz Resources”). Hafidz Resources did not impugn Dato’ Hafidz’s authority to affirm affidavits for the Plaintiff. S/N GayGxZveGEqeKdYl8b3jjw Third Reason To Dismiss The 1st PO

The Sanction was sent or copied to Dato’ Hafidz. If another contributory had applied for the Sanction, the Official Receiver and Liquidator would have sent it to Hafidz Resources, but they did not. This shows that Dato’ Hafidz was the contributory who submitted the application for the Sanction. Fourth Reason To Dismiss The 1st PO

Until the hearing of the preliminary objections, the Official Receiver and Liquidator did not challenge Dato’ Hafidz’s authority to affirm affidavits for the Plaintiff. Since they did not dispute his authority, the 1st PO has no leg to stand. Fifth Reason To Dismiss The 1st PO

Reference should be made to paragraph 2(e) of the Sanction which provides: “Sekiranya terdapat penukaran peguam dan firma guaman oleh Penyumbang, peguam yang telah diberi kebenaran penyelesai (‘sanksi’) oleh PPP bagi mewakili syarikat hendaklah memaklumkan berkenaan pertukaran ini kepada PPP secara bertulis. Lanjutan itu, Penyumbang syarikat dikehendaki untuk memohon kebenaran penyelesai S/N GayGxZveGEqeKdYl8b3jjw (‘sanksi’) yang baharu kepada PPP sebelum apa-apa tindakan guaman dimulakan dan/atau diteruskan di Mahkamah oleh peguam dan firma guaman yang baharu;”

The first sentence of paragraph 2(e) of the Sanction clearly states that the contributories have the right to change solicitors. The second sentence of paragraph 2(e) of the Sanction requires the contributories to submit a new sanction application to the Official Receiver and Liquidator to appoint another firm of solicitors. If the Sanction were intended solely for Messrs Yusfarizal Aziz & Said, the Official Receiver and Liquidator would not have included a condition requiring the contributories to seek approval before changing the solicitors representing the Plaintiff. 2nd PO

The Learned Counsel for the Defendants argued that according to a decision by another High Court in Small Medium Enterprise Development Bank Malaysia Bhd v Oren Venture Sdn Bhd & Ors [2022] 6 CLJ 148 (“Oren Venture”), the Sanction was defective because only the Court had the authority to issue it. In Oren Venture, the Learned Judicial Commissioner (now High Court Judge) held that: “[25] Nevertheless, I am also of the view that the Act does provide for giving a sanction to a creditor or contributory – S/N GayGxZveGEqeKdYl8b3jjw and only a creditor and contributory – to bring an action on behalf of a wound-up company. However, that power to issue such sanction is only exercisable by the court. The basis for this is s. 486(2) of the Act and Zaitun Marketing.” (emphasis added)

Based on the decision in Oren Venture, the Learned Counsel for the Defendants further argued that, since the Sanction was invalid, Dato’ Hafidz did not have the authority to affirm the affidavits in enclosures 84, 88 and 93 on behalf of the Plaintiff. Consequently, all the material averments made by the Defendants in Enclosures 81 and 87 were deemed admitted by the Plaintiff (Ng Hee Thoong & Anor v. Public Bank Berhad [1995] 1 MLRA 48; [1995] 1 MLJ 281; [1995] 1 CLJ 609).

The 2nd PO is also devoid of merit and should be dismissed for the reasons set out below. First Reason To Dismiss The 2nd PO

The Sanction was validly issued by the Official Receiver and Liquidator pursuant to Section 486 CA 2016 and Part I of the Twelfth Schedule of CA 2016.

For clarity, I reproduce Section 486 CA 2016 and Part I of the Twelfth Schedule of CA 2016. SECTION 486 OF CA 2016 “(1) Where a company is being wound up by the Court, the liquidator may:

without the authority under paragraph (b), exercise any of the general powers specified in Part I of the Twelfth

with the authority of the Court or the committee of inspection, exercise any of the powers specified in Part II of the Twelfth Schedule.

The exercise by the liquidator in a winding up by the Court of the powers conferred by this section is subject to the control of the Court and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.” S/N GayGxZveGEqeKdYl8b3jjw TWELFTH SCHEDULE POWERS OF LIQUIDATOR IN WINDING UP BY COURT

Based on Section 486(1)(a) and in particular item (l) of Part I of the Twelfth Schedule of CA 2016, the Learned Counsel for the Defendants’ argument that only the Court had the power to issue the Sanction cannot hold water.

Reference should be made to the recent decision by Azlan Sulaiman J in Gema Kukuh Sdn Bhd v Felda Properties Sdn Bhd [2025] MLRHU 438. In that case, the Learned Judge referred to his Lordship’s earlier decision in Oren Venture and had this to say: “[23] The second principle of Oren Venture is that the only way a creditor or contributory can bring, continue S/N GayGxZveGEqeKdYl8b3jjw with or defend any action or other legal proceedings in the name and on behalf of the wound-up company is if the liquidator first refuses to do so. The creditor or contributory can then apply to Court under s 486(2) of the Companies’ Act 2016 for an order to compel the liquidator to, or for a court-sanction for the creditor or contributory to do so in his stead. But, without that liquidator’s refusal and the court's sanction, they cannot.” (emphasis added)

The above decision of the Learned Judge in Gema Kukuh Sdn Bhd v Felda Properties Sdn Bhd [2025] MLRHU 438 aligns with Section 486 and Part I of the Twelfth Schedule of CA 2016.

Regarding Section 486 and Part I of the Twelfth Schedule of CA 2016, I am also guided by the following authorities:

in Zaitun Marketing Sdn Bhd v. Boustead Eldred Sdn Bhd (formerly known as Bousted Trading (1985) Sdn Bhd) [2009] 3 MLRA 757; [2010] 2 MLJ 749; [2010] 3 CLJ 785 (“Zaitun Marketing”), the Federal Court had this to say: “[19] Of course, resort to the court’s power to authorise someone other than the liquidator to institute, continue or defend proceedings only arises where the liquidator refuses to do so and declines S/N GayGxZveGEqeKdYl8b3jjw authority. But where, as here, the liquidator grants authorisation, there is no necessity to move the court. Once authority is given either by the liquidator or by the court, the person authorised may appoint counsel of his or her choice to prosecute the proceedings in question.” (emphasis added)

in Lai King Lung (practising as advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners, advocates and solicitors) & Anor v. Merais Sdn Bhd [2020] 5 MLRA 1; [2020] 5 MLJ 614; [2020] 9 CLJ 449 (“Lai Kung”), the Federal Court held that: “[20] … Accordingly, if a creditor or contributory of the wound up company wishes to bring or proceed with an action, the creditor or contributory must apply to the liquidator for his sanction to do so… [21] At the outset, it is important to appreciate that there are two different and distinct fact situations under which leave of the court or sanction of the liquidator is required. The first is in respect of action or proceeding against a wound-up company. This situation is governed by s 226(3) of the 1965 Act/s 471(1) of the 2016 Act which provides S/N GayGxZveGEqeKdYl8b3jjw that leave of court is necessary in order for any action or proceeding proceeded with or commenced against a wound-up company. The second scenario is where action or proceeding is taken by a wound-up company: s 236(2)(a) & 236(3) of the 1965 Act/s 486 of the 2016 Act read together with Part I of the Twelfth Schedule which requires the sanction of the liquidator to be obtained. The factual matrix in this appeal falls under the latter scenario.” (emphasis added)

in Leopad Holdings Sdn Bhd v. Asian Shield Warehousing Sdn Bhd and another appeal [2020] 6 MLRA 85; [2021] 2 MLJ 424; [2021] 1 CLJ 328 (“Leopard”), the Court of Appeal held that: “[41] … The liquidator can grant sanction to a creditor or contributory under s 486 and the Twelveth Schedule of the Companies Act 2016 (previously s236 Companies Act 1965) to commence or defend an action.”

in Ooi Kim Geik v. Ng King Chong & Ors [2022] MLRHU 3188; [2023] 12 MLJ 958, Azmi Ariffin J (now JCA) did not follow Oren Venture and had this to say: S/N GayGxZveGEqeKdYl8b3jjw “[23] … the learned judicial commissioner has not made any reference to item (l) in Part I of the Twelfth

bring or defend any action or other legal proceedings in the name and on behalf of the company;

compromise any debt due to the company other than calls and liabilities for calls and a debt where the amount claimed by the company to be due to the company does not exceed ten thousand ringgit;

sell the immovable and movable property and things in action of the company by public auction, public tender or private contract with power to transfer the whole immovable and movable property and things to any person or company or to sell the same in parcels;

do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents and for that purpose use when necessary, the company’s seal;

prove rank and claim in the bankruptcy of any contributory or debtor for any balance against his estate, and receive dividends in the bankruptcy in respect of that balance as a separate debt due from the bankrupt and rateably with the other separate creditors;

draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or indorsed by or on behalf of the company in the course of its business;

raise on the security of the assets of the company any money requisite;

take out letters of administration of the estate of any deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor or his estate which cannot be conveniently done in the name of the company, and in all such cases the money due shall, for the purposes of enabling the liquidator to take out the letters of administration or recover the money, be deemed due to the liquidator;

make any payment as necessary in carrying on the affairs of the company in its ordinary course of business including payment of utility bills, statutory fees and all other such payments;

appoint an agent to do any business which the liquidator is unable to do;

appoint an advocate to assist him in his duties; and

do all such other things as are necessary for winding up the affairs of the company and distributing its assets.”