Vistasik Sdn Bhd v Propel Synergy Sdn Bhd (WA-28NCC-370-04/2023)

This application, in Enclosure 174 dated 24 March 2026, was filed by Isotechnic Electrical Sdn Bhd (the Proposed Intervener) seeking leave to intervene in the proceedings, specifically in Enclosure 129 (the Respondent’s application for an unless order pursuant to sections 469(1)(c) and 469(3) of the Companies Act 2016 (CA 2016).

The Proposed Intervener is the Petitioner's creditor (not the Respondent's) and a member of the Petitioner's Committee of Inspection (COI). The Proposed Intervener sought to be joined in Enclosure 129 to oppose the unless order on the ground that its interests as a creditor of the Petitioner would be affected.

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Both the Petitioner and the Respondent opposed Enclosure After considering the cause papers and the written and oral submissions of all parties, I dismissed Enclosure 174. I then heard the Amended Winding-Up Petition (Enclosure 39) and the unless order application (Enclosure 129) together, and allowed Enclosure 129 for the reasons set out in the separate Grounds of Judgment for that application. I now set out my reasons for dismissing Enclosure 174.

The background to the main proceedings has been set out in the Grounds of Judgment for Enclosures 39 and 129 and need not be repeated in full.

In brief, the Petitioner filed a winding-up petition against the Respondent for a total debt of RM30,124,469.86. The Respondent sought an unless order in Enclosure 129, proposing to pay the full debt in 30 monthly instalments in lieu of an immediate winding-up.

The history of intervention applications in this matter is significant. Before Enclosure 174 was filed, this Court had already heard and dismissed seven (7) earlier intervention applications, namely Enclosures 54, 56, 58, 60, 63, 136 and 139, predominantly on the ground that the proposed interveners in those applications were creditors of the Petitioner, not of the Respondent, and therefore lacked locus standi in these winding-up proceedings.

Critically, the very same Proposed Intervener, Isotechnic Electrical Sdn Bhd, had previously applied to intervene in these proceedings by way of Enclosure 58, filed on 11 November

That application was dismissed by Justice Wan Muhammad Amin bin Wan Yahya on 5 June 2025. No appeal was filed against that dismissal.

Two other members of the same COI, BME Tenaga Arus Sdn Bhd and The Solid Kitchen Manufacturing Sdn Bhd, had separately filed Enclosures 136 and 139, seeking to intervene in Enclosure 129. Both Enclosures 136 and 139 were subsequently withdrawn on 11 March 2026 after a full hearing, with costs totalling RM60,000.00 awarded to the Petitioner and the Respondent.

With full knowledge of the above, the Proposed Intervener, a member of the COI, filed Enclosure 174 on 24 March 2026, under a certificate of urgency, just days before the hearing of Enclosures 39 and 129 on 1 April 2026.

Both the Petitioner and the Respondent opposed the application on multiple grounds. Enclosure 174 was heard and dismissed on the same occasion, after which the Court proceeded to hear Enclosures 39 and 129.

The Proposed Intervener advanced its case for intervention on three broad grounds.

First, on the question of whether a party can seek to intervene in a specific application within a winding-up proceeding (rather than the entire proceedings), the Proposed Intervener relied on the following authorities:

The Federal Court's decision in PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, Intervener) [2019] 4 MLJ 747, in which intervention was permitted for the specific purpose of expunging part of a judgment;

The Federal Court decision in Metramac Corporation Sdn Bhd (formerly Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501, which likewise permitted intervention to expunge alleged offensive statements; and

The High Court case of Bast Investment Pte Ltd v Musang Durian Frozen Food (M) Sdn Bhd & Anor (Pemborong A & L Sdn Bhd & Ors, Interveners) [2023] MLJU 1486, in which intervention was permitted solely to oppose a Mareva Injunction. 6 13. The Proposed Intervener argued that, because Enclosure 174 was limited to intervening in Enclosure 129 only (rather than the entire winding-up proceedings), the principle of res judicata arising from the earlier dismissal of Enclosure 58 did not apply.

Second, regarding the substantive legal interest in Enclosure 129, the Proposed Intervener relied on the test in Pegang Mining Co. Ltd v Choong Sam & Ors [1968] 1 LNS 96, as affirmed by the Federal Court in Majlis Agama Islam Selangor v Bong Boon Chuen & Ors [2009] 6 CLJ 405, which holds that the proper question is whether the applicant’s “rights against or liabilities to any party to the action in respect of the subject matter of the action will be directly affected” by the order made.

The Proposed Intervener argued that its interest was directly affected in two ways: (a) a delay to the Petitioner's liquidation process if Enclosure 129 were allowed; and (b) the alleged prejudicial conduct of the Petitioner's Liquidator.

Third, the Proposed Intervener submitted that Enclosure 129 was procedurally irregular because section 469 of the CA 2016, which empowers the Court to make orders “on hearing the petition for winding up”, applies only when the winding-up petition itself is being heard. Accordingly, Enclosure 129 could not stand alone as a freestanding application. Reliance was placed on Tan Pit Mooi v Jaia Sdn Bhd & Ors [2021] 1 LNS

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Both the Petitioner and the Respondent opposed Enclosure 174 on overlapping grounds, which may be grouped as follows.

I have carefully considered all submissions. My findings on each ground are as follows.

The Respondent contended that, when filing Enclosure 174, the Proposed Intervener failed to disclose to this Court the existence and prior dismissal of Enclosure 58. This failure is particularly serious because Wong Keh Voon, the deponent of the Affidavit in Support of Enclosure 174, is the same person who affirmed the Affidavit in Support of Enclosure 58. The Proposed Intervener and its solicitors could not, therefore, plead ignorance of the prior dismissal.

A party seeking urgent leave of the Court is under the highest duty of candour and disclosure. It must place all material facts before the Court, including the existence of any prior order directly relevant to the application. The Proposed Intervener’s failure to disclose the prior dismissal of Enclosure 58, filed by the same entity, affirmed by the same deponent, and in the same proceedings, is inexcusable. This alone is sufficient to cast serious doubt on the bona fides of Enclosure 174.

Therefore, the non-disclosure of a material prior order is a serious matter. It reflects a want of candour towards this Court and conduct that cannot be condoned. Enclosure 174 is Barred by Res Judicata

It is noted that the Proposed Intervener's initial application in

Enclosure 174 sought to intervene in both Enclosures 39 and However, by the time of its written submissions and the case management before this Court, the Proposed Intervener had narrowed its position to seek intervention in Enclosure 129 only. This narrowing appeared to be a deliberate attempt to distinguish Enclosure 174 from its earlier application in Enclosure 58, which had sought intervention in the same proceedings and was dismissed by a High Court Judge on 5 June 2025, thereby avoiding the operation of res judicata. No appeal was filed against that dismissal.

The Respondent relied on Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1997] 2 CLJ 104 to support the proposition that the dismissal of Enclosure 58 constitutes a final determination that is barred from relitigation.

The Petitioner likewise relied on the Federal Court decision in Lim Guan Eng v Ruslan bin Kassim [2021] 2 MLJ 514, which held that a party who does not appeal a finding is taken to have accepted it as true. By not appealing the dismissal of Enclosure 58, the Proposed Intervener is bound by that dismissal.

The Petitioner further relied on Kwang Ee Fu v Ho Hau Wong [2024] CLJU 2956, in which the Court held that a party that failed to appeal a decision refusing intervention has no locus standi to relitigate the same matter.

The Proposed Intervener sought to avoid res judicata by arguing that Enclosure 174 was limited to Enclosure 129, a specific application within the proceedings, and that such targeted intervention is permissible under PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, Intervener) (supra), Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) (supra) and Bast Investment Pte Ltd v Musang Durian Frozen Food (M) Sdn Bhd & Anor (Pemborong A & L Sdn Bhd & Ors, Interveners) (supra). I do not accept this argument for two reasons.

First, none of those three authorities involved a prior intervention that the Court had refused. Res judicata was not in issue in any of them. They are, therefore, not the authority for the proposition that a refused intervention can be repackaged as one targeting a specific application within the same proceedings to escape the doctrine.

Second, the definition of “proceeding” under section 3 of the Courts of Judicature Act 1964 and Order 1 rule 4(1) of the Rules of Court 2012 expressly extends to any application at any stage of a proceeding. Enclosure 129 is an application within these winding-up proceedings. Enclosure 58, which was dismissed, was, in substance, an application to intervene in the very same proceedings, which necessarily encompasses all applications made at any stage, including Enclosure 129. The attempt to dress up Enclosure 174 as a narrower, targeted intervention does not take it outside the scope of what was already finally determined by the dismissal of Enclosure 58.

I therefore find that Enclosure 174 is barred by the doctrine of res judicata. Enclosure 174 is an Abuse of Process - Reliance on the Same

The Respondent highlighted that the grounds relied upon in Enclosure 174 are substantially the same as those advanced by the proposed interveners in Enclosures 136 and 139, filed by BME Tenaga Arus Sdn Bhd and The Solid Kitchen Manufacturing Sdn Bhd, respectively. Those applications were withdrawn after a full hearing on 11 March 2026, with costs of RM60,000.00 awarded against them.

The Petitioner similarly submitted that Enclosure 174 is an afterthought, filed on substantially the same grounds and with actual knowledge of all prior outcomes, and that such relitigation constitutes an abuse of process, relying on Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 and the Federal Court’s endorsement of that principle in Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133.

I agree. The Proposed Intervener is a member of the same COI as BME Tenaga Arus and The Solid Kitchen Manufacturing. According to its own affidavit evidence, it was aware of and involved in the same chain of events that underpinned Enclosures 136 and 139. Despite this, Enclosure 174 was filed on substantially the same grounds, just days after those applications were withdrawn, under a certificate of urgency and at the eleventh hour, before the hearing of Enclosures 39 and 129.

This is precisely the kind of conduct that the authorities on abuse of process are directed against. As affirmed by the Federal Court in Kerajaan Malaysia v Mat Shuhaimi bin Shafiei (supra), following Superintendent of Pudu Prison v Sim Kie Chon, relitigation in such circumstances constitutes an abuse of process. I so find. No Locus Standi — The Proposed Intervener is Not a Creditor of the Respondent

The Respondent contended, under rule 28 read with Form 8 of the Companies (Winding-Up) Rules 1972 and the Court of Appeal’s decision in Kok Fook Sang v Juta Villa (M) Sdn Bhd & Ors [1996] 2 MLJ 666, that only creditors or contributories of the Respondent company have standing to participate in winding-up proceedings. The Proposed Intervener is a creditor of the Petitioner, not the Respondent. It is effectively a stranger to the Respondent and has no locus standi in these proceedings.

This Court has already dismissed seven previous applications for intervention on this very ground. The position is consistent and settled.

The fundamental requirement for participation in winding-up proceedings is that the applicant must be a creditor or contributory of the Respondent company, the subject of the winding-up petition. This is clear from rule 28, read with Form 8, of the Companies (Winding-Up) Rules 1972, and is consistent with the Court of Appeal's decision in Kok Fook Sang v Juta Villa (M) Sdn Bhd (supra).

The Proposed Intervener is a creditor of the Petitioner, not of the Respondent. It has no debt claim against the Respondent. It has no proprietary interest in the Respondent’s assets. In legal terms, it is a complete stranger to the Respondent company.

The Proposed Intervener sought to frame its interest as a “legal interest” rather than a mere commercial one, relying on Pegang Mining (supra), as approved in Majlis Agama Islam Selangor (supra). However, I accept the consistent position this Court has maintained throughout this case: the relevant “subject matter” in these proceedings is whether the Respondent should be wound up. The Proposed Intervener’s interest as a creditor of the Petitioner is an indirect, downstream interest at best. Its rights against the Respondent, the relevant party in the action, will not be directly affected by any order made. The test in Pegang Mining is not satisfied.

The argument that section 521 of the CA 2016 gives creditors of the Petitioner the right to participate does not alter this analysis. Section 521 allows the Court to have regard to creditors’ wishes in matters relating to a company’s winding-up. It does not confer standing on creditors of the Petitioner to intervene in proceedings concerning the winding-up of a different company, the Respondent.

The Proposed Intervener made extensive submissions alleging that the Petitioner’s Liquidator had acted contrary to the wishes of creditors and the COI, and that this conduct was prejudicial to the Proposed Intervener. Both the Petitioner and the Respondent submitted that these complaints are plainly outside the scope of the present winding-up proceedings and that this is manifestly not the proper forum in which to ventilate such complaints.

I agree. Even taking the Proposed Intervener's factual narrative at its highest, the delay to the Petitioner’s liquidation process and the Liquidator’s conduct are matters that the Petitioner itself can raise (which it has done) or that can be addressed in the appropriate forum for complaints about a liquidator’s conduct. They do not confer a legal interest on the Proposed Intervener that would give it standing to intervene in the winding-up proceedings concerning the Respondent.

Furthermore, the Petitioner, in its own affidavits and submissions on record, including Affidavit No. 5 dated 19 August 2025 (Enclosure 134), Affidavit No. 6 dated 24 September 2025 (Enclosure 135), Affidavit No. 7 dated 7 October 2025 (Enclosure 144), Affidavit No. 9 dated 23 January 2026 (Enclosure 166) and Affidavit No. 10 dated 23 January 2026 (Enclosure 168), as well as the Petitioner’s written submission at Enclosures 170 and 194, has in fact brought the creditors’ position and objections to Enclosure 129 squarely to the attention of this Court. The allegation that the Liquidator had concealed the creditors’ position is therefore inaccurate.

I also note that the Petitioner’s own submissions in Enclosures 170 and 194 had already canvassed the delay ground before this Court as part of its opposition to Enclosure 129. The Proposed Intervener’s presence was not necessary for that argument to be heard and considered.

As for the allegations about the Liquidator, these matters fall within a separate forum and are irrelevant to whether the Proposed Intervener should be granted leave to intervene in Enclosure 129. I accept the submission that the Proposed Intervener’s reliance on Dato Seri Yap Seng Yew & Anor v Expo Electronics Sdn Bhd & Ors [2025] CLJU 1851 is misplaced, as Mr Lim Litt acted in that case in a different capacity, namely as the liquidator’s representative. The case is therefore not on point.

Furthermore, it was a submission at the Bar on an issue of fact not raised in any affidavit, and accordingly ought not to be given any weight.

The Proposed Intervener also submitted that Enclosure 129 was procedurally irregular because section 469 of the CA 2016 applies only when the winding-up petition is being heard. This argument is without merit and does not assist the Proposed Intervener in any event. In fact, Enclosures 39 and 129 were heard together by this Court on the same occasion. The Proposed Intervener’s premise that Enclosure 129 was a freestanding application divorced from the petition was factually incorrect from the outset.

Furthermore, the question of whether Enclosure 129 was procedurally regular was not for the Proposed Intervener to decide. It was for the proper parties, the Petitioner and the Respondent, to argue and for this Court to determine. This Court has since heard and allowed Enclosure 129, having found in its Grounds of Judgment for that application that it has clear jurisdiction under sections 469(1)(c) and 469(3) of the CA 2016 to grant the unless order sought.

The irregularity argument accordingly had no merit and, in any event, was not a ground on which the Proposed Intervener, a stranger to these proceedings, had standing to advance.

It is also worth noting that the Proposed Intervener has elected not to file any Affidavit in Reply to the Respondent’s and the Petitioner’s Affidavits in Reply (Enclosures 183 and 185, respectively) and to the written submissions filed by the Petitioner and the Respondent. Accordingly, by virtue of the principle in Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29, the positive assertions of fact made in Enclosures 183 and 185 stand uncontradicted and are taken to be admitted by the Proposed Intervener. This further undermines the credibility of Enclosure 174.

For all the reasons set out above, I find no merit in the Proposed Intervener’s application in Enclosure 174. I hereby order that Enclosure 174 be dismissed, with costs of RM50,000.00 to the Respondent and RM30,000.00 to the Petitioner, to be paid by the Proposed Intervener. Dated 24 June 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA COMMERCIAL 10 (INSOLVENCY 1) KUALA LUMPUR To the parties’ solicitors: For the Petitioner : Wilson Lim Mao Shen & Huam Wan Ying (Messrs Wilson Lim and Arbain & Co.) For the Respondent : Goik Kenwayne & Foong Kar Yee (Messrs Dennis Nik & Wong) For the Proposed : Tan Chee Qian, Low Han Shin & Chuah Intervener Chern Tee (Messrs Chuah Qian & Partners)