Unsecured creditors may intervene in judicial management proceedings as the Companies Act does not restrict their participation, and unwritten decisions cannot serve as binding precedent.

(Enclosures 191, 201, 204, 206, 208, 210, 212 & 219)

Introduction

[1] The Applicant, Ace Holdings Berhad ("AHB"), seeks to place itself under judicial management pursuant to s 405 of the Companies Act 2016 ("CA2016").

[2] A total of eight (8) proposed interveners ("P/ls") have applied for leave to intervene in these proceedings under O 15 r 6(2)(b)(ii) of the Rules of Court 2012. Each P/I asserts that they are creditors of AHB, and that the outcome of the judicial management ("JM") application will directly and adversely affect their legal rights.

[3] The P/ls' positions as creditors of AHB are founded on their status as subscribers to Redeemable Preference Shares (RPS) issued by AHB. Each of the P/ls had duly issued Notices of Redemption pursuant to the terms of the RPS subscription, seeking repayment of the principal sums invested. However, AHB failed or refused to honour these redemption notices. These acts give rise to legal debts and creditor claims against AHB.

[4] These grounds primarily address the issue of whether the P/ls should be granted leave to intervene under O 15 r 6(2)(b)(ii) of the Rules of Court 2012.

Whether The Proposed Interveners May Intervene

[5] The basis of the P/ls' applications to intervene is that they are creditors of AHB with existing or pending legal claims, and the outcome of the JM application will significantly affect their rights and remedies.

[6] All P/ls rely on the principle that a party whose legal rights or obligations are directly affected by the relief sought in a proceeding is entitled to intervene under O 15 r 6(2)(b)(ii). They further argue that the Companies Act does not restrict unsecured creditors from participating in JM proceedings, and that the principles of natural justice and fairness entitle them to be heard.

[7] The Applicant, AHB, objects to the intervention applications. It argues, among others, that unsecured creditors are not entitled to intervene or be heard in JM applications. In support of this, AHB relies heavily on the Court of Appeal's decision in Desa Tiasa Sdn Bhd v. CME Group Berhad & Anor [B-02(IM)-626-04/2023], which it contends stands for the proposition that unsecured creditors have no locus to be heard in JM applications.

[8] In reply, the P/ls submit that Desa Tiasa has no binding effect as there is no written judgment. They rely on the case of Tetuan Wan Shahrizal Hari & Co v. PP ; [2023] 4 MLJ 1; [2023] 4 AMR 389 , where the Federal Court held that an unwritten decision cannot constitute binding precedent as it lacks a ratio decidendi. Accordingly, the P/ls argue that the decision in Desa Tiasa cannot preclude unsecured creditors from intervening where they have demonstrated a legitimate legal interest.

[9] I agree with the submissions of the P/ls on this point. The ruling in Tetuan Wan Shahrizal is clear: an appellate Court decision that is not supported by written grounds cannot be treated as binding precedent. Without reasons, the decision lacks a discernible ratio that can guide future courts.

[10] In contrast, there are several High Court decisions, namely, Goldpage Assets Sdn Bhd v. Unique Mix Sdn Bhd (encls 10 16 20 & 26) , Gandahan Sdn Bhd v. Gigatech Engineering Sdn Bhd , and Novabrite Lighting Sdn Bhd v. Emrail Sdn Bhd (Balaranee Construction, proposed intervener) [2025] 2 MLRH 286 ), which specifically held that unsecured creditors may be allowed to intervene in JM proceedings as the CA 2016 does not exclude them from participating.

[11] Further, there is no provision in the Companies Act or the Corporate Rescue Mechanism Rules that limits intervention to secured creditors. The nature of judicial management proceedings, which directly affect all classes of c