the Proprietor also confirmed this in Messrs KHC’s letter dated 16.6.2023. [32] As such, the Applicant submits that he is the legal and beneficial owner of the Property; indeed, the original title of the Property is in the possession of the Applicant’s solicitors’, forwarded by Messrs TBH, the solicitors in charge of SPA 2018. [33] Without the Developer’s Confirmation issued by the Liquidator and/or Goldpage, the title of the Property could not be transferred and registered in the Applicant’s name. [34] I will now consider whether the test to grant leave to commence proceedings against the Liquidator and Goldpage has been met. GOLDPAGE [35] In his submissions, the Applicant avers that his claims are to obtain declarations that Goldpage has acknowledged the receipt of the Purchase Price and that the Applicant is the legal and beneficial owner of the Property. And that specific performance be granted against Goldpage, and the Liquidator to issue the Developer’s Confirmation to the Applicant. [36] I take the view that the test to grant leave to commence proceedings against Goldpage has been met. The way arguments were conducted suggested that Counsel for the Reapondents really did not resist the application for leave against Goldpage. But he did not concede leave against Goldpage, so I will deal with it. Prima Facie Case [37] First, there is little doubt in my mind that the Applicant has demonstrated a prima facie case (if not a very strong prima facie case) and certainly that a serious dispute between parties has arisen within Mesuntung Property Sdn Bhd (supra). [38] There is sufficient evidence to show that the Applicant has obtained rights against the Property under SPA 2018. And that the purchase price payable thereunder has been paid by virtue of the contra of the Purchase Price paid under SPA 2015 against the purchase price payable under SPA 2108, see the summary of evidence at para 30(a) above. [39] As with the direction of the Court of Appeal in para 43 of Ganda Setia Cemerlang Sdn Bhd & Anor v. Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661, I will not go any further into the merits of the claim. That is a matter for the Civil Court. The Nature of the Applicant’s Claims [40] Secondly and quite clearly, the Applicant’s relief sought being claims for declarations and specific performance, could not be granted by the winding up Court. They are not pure monetary claims that could be dealt with by the proof of debt process. In Mesuntung Property (supra) it was held at para 2 that: “(2) There was little doubt that the appellant’s claim of specific performance could not be dealt with by the winding up court in that its claim was unlike say a proof of debt. In short it was not a monetary claim.” [41] In Ganda Setia Cemerlang Sdn Bhd & Anor (supra), the Court of Appeal held that: “(2) Contrary to the view of the learned judge, the remedy of specific performance remained one which the winding up court could not make. It could not be a remedy that could be resolved through the lodgment of a proof of debt with the liquidators of the respondent. … There was no reason for leave to commence action against the respondent to be denied due to this alternative plea (see para 41).” [42] Similarly, I accept Counsel for the Applicant’s reference to AWH Equity Holdings Sdn Bhd & Ors v GMV-Borcos Sdn Bhd [2020] 11 MLJ 212 and Ku Nyet Lee v Sazone Development Sdn Bhd [2021] MLJU 1666, where the High Courts have held that specific performance and declaration of legal ownership of disputed property falls within the Civil Court, which the Winding Up Court has no jurisdiction to make or determine. Summary [43] In the circumstances, I have no doubt that leave ought to be granted to the Applicant to proceed with action against Goldpage for two (2) reasons above. This will meet the test in Mesuntung (supra). [44] First, there is a prima facie case against Goldpage, and that there is evidence of payment of the purchase price to the Respondents under SPA 2018. The Respondents say that there is no proof of payment, see Resp’s Subs Encl 8 at paras 9 and 10; and Resp Reply Encl 14 at para 6.I am afraid those assertions are bare and contrary to the evidence. [45] And secondly, the remedies sought of declaratory relief and specific performance cannot be granted by a winding up Court or by the proof of debt process. THE LIQUIDATOR [46] Leave against the Liquidator was more contentious. The refusal to accept the Applicant’s claim was most probably an act of the Liquidator. [47] I do accept that the Applicant’s proposed claim for the transfer of the Property is in the first instance, a claim for breach of contract (SPA 2018) and would ordinarily lie against Goldpage and not its agent, the liquidator, see the Federal Court in Tee Siew Kai (liquidators for Merger Acceptance Sdn Bhd (in liquidation)) v Machang Indah Development Sdn Bhd (in liquidation) (previously known as Rakyat Corp Sdn Bhd) [2020] 6 MLJ 168 at paras 63 to 65. [48] However, if the Applicant proves its case and that the purchase price under SPA 2018 is deemed paid in full, then Goldpage would be constituted a constructive trustee holding the Property on trust for the Applicant. And the Liquidator, by refusing to execute the Developer’s confirmation, has intermeddled in the affairs of the trust and may be constituted a constructive trustee. This could give rise to personal liability on the Liquidator. [49] The case theory of personal liability by the imposition of a constructive trust on the Liquidator may be supported as follows. [50] First, Goldpage will be constituted constructive trustee of the Property if the purchase price under SPA 2018 has been paid in full. In M & J Frozen Food Sdn Bhd & anor v Siland Sdn Bhd & anor [1994] 1 MLJ 294, the Federal Court held: “The position under our case law is however a little less demanding. According to the authorities, on the execution of the contract payment of the full purchase price and the delivery of the document of Title, the vendor becomes a constructive trustee for the purchaser and the latter acquires an equitable right on the land. In Temenggong Securities Ltd & Anor v Registrar of Titles, Johore & Ors, Ong Hock Sin FJ after consulting various English authorities expressed the court's judgment in the following terms: The law is clear that the vendors, after receipt of the full purchase price and surrender of possession of the lands to the appellants are bare trustees for the appellants of the said land and it must consequently follow, as night must day, that the vendors have no interest in the lands which can be the subject matter of a caveat. In the same case Gill FJ expressed the opinion that the vendor became a constructive trustee when the full purchase money had been paid and the purchaser has received the instruments of transfer and the title deeds. In Aberfoyle Plantations Ltd v Khaw Bian Cheng the Privy Council observed that the vendor became a ‘bare trustee’ on payment of the purchase money. Similarly, in Chang v Registrar of Titles, it was held that the vendor has no right of his own and becomes a holder of the legal estate on payment of the purchase money. Although the authorities seem to differ on the level of transaction at which the bare or constructive trusteeship would arise the rationale are unanimous on one issue i.e. such trusteeship can only arise on payment of the balance of the purchase price or on payment of the full purchase price. In Peninsular Land Development v Ahmad (as he then was) said that the beneficial ownership passes to the purchaser as soon as the purchase price has been paid.” [51] Secondly, the Liquidator was the directing mind and will of Goldpage and may be considered to have intermeddled with the affairs of the trust by refusing to transfer the Property, the subject matter of the constructive trust. As an example, in Twigg v Twigg (No 4) 147 ACSR 389 at para 136, the Court held: “[136] In the present case, the Corporate Plaintiffs as trustees had the power to distribute the proceeds of sale to Max. Max took it upon himself to exercise that power and in doing so took it upon himself to intermeddle with trust matters. The authors of Jacobs’ Law of Trusts in Australia describe this as a “borderline” case of a constructive trust because of the similarities of such a trust to an express trust. As they point out (J D Heydon & M J Leeming, Jacobs Law of Trusts in Australia, 8th ed, LexisNexis, 2016 at [13–03]): “… But the alleged trustee is liable by reason of the de facto assumption of office and can be in no better position in respect of a breach than an express trustee would be.” [52] In summary, if the purchase price for SPA 2018 can be considered paid, then Goldpage would be considered a constructive trustee of the Property for the benefit of the Applicant. Under the trust, Goldpage may be required to execute the Developer’s Confirmation for the benefit of the Applicant. In this case, the liquidator of Goldpage simply refused to issue the Developer’s Confirmation on behalf of Goldpage. If such refusal was considered wrongful, there would be a prima facie case against the Liquidator, for wrongly intermeddling in trust affairs and thereby liable personally as a constructive trustee. And the remedy to enforce the constructive trust could not be granted by the Winding Up Court. [53] Further, the initial action against Goldpage will be defended by the Liquidator in any event. It would be more convenient if the Liquidator was also made a party to avoid fresh execution proceedings against the Liquidator in the event the Applicant is successful against Goldpage. It will avoid unnecessary duplication of costs and avoid possible inconsistent findings by different Judges of the High Court. CONCLUSION [54] The Applicant satisfies both tests and leave ought to have been granted by this Winding Up Court against both the Liquidator and Goldpage. In the circumstances, I exercised my discretion and granted the Applicant leave to commence proceedings against Goldpage and also against the Liquidator. Dated 9th May 2025 ...................t.t........................... YA Tuan Saheran Suhendran Judicial Commissioner, High Court of Malaya, Kuala Lumpur. Kwan Yi Xuan [ (KH Wong,Chin&Cheah (Kuala Lumpur) ] for the Applicant Yap Yoon Jan [ (Yap Siew Yee&Co (Petaling Jaya)] for the Respondent Cases Referred to: • AG v Blake [2001] 1 AC 268 • AWH Equity Holdings Sdn Bhd & Ors v GMV-Borcos Sdn Bhd [2020] 11 MLJ 212 • Ganda Setia Cemerlang Sdn Bhd & Anor v. Maika Holdings Bhd (in liquidation) [2017] 6 MLJ 661 • Ku Nyet Lee v Sazone Development Sdn Bhd [2021] MLJU 1666 • M & J Frozen Food Sdn Bhd & anor v Siland Sdn Bhd & anor [1994] 1 MLJ 294 • Mesuntung Property Sdn Bhd v. Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886 • N Chanthiran a/l Nagappan v. Kao Che Jen [2023] 5 MLJ 284 • Ooi Woon Chee & Anor v Dato’ See Teow Chuan & Ors [2012] 2 MLJ 713 • Tan Aik Ling v CT World Construction Sdn Bhd and another suit [2024] MLJU 2479 • Tee Siew Kai (liquidators for Merger Acceptance Sdn Bhd (in liquidation)) v Machang Indah Development Sdn Bhd (in liquidation) (previously known as Rakyat Corp Sdn Bhd) [2020] 6 MLJ 168 • Twigg v Twigg (No 4) 147 ACSR 389 Legislation Referred to: • Companies Act 2016 (“CA 2016”) • Order 92 Rule 4 of Rules of Court 2012 (“ROC”) Decision date: 26th March 2025