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2025 MarsdenLR 4892
HIGH COURT MALAYA SUNGAI PETANI
MANIKUMAR SUBRAMANIAM & ANOR – Appellant
Versus
GANESAN KOLANDAI & ORS – Respondent
[Writ Of Summons No: KB-22NCVC-32-06/2023]
Consent judgments require parties to have authority at the time of agreement; prior knowledge of a company's winding up negates claims of lack of authority for enforcement.
Headnote:(A) Rules of Court 2012 - Order 45 r 11 - Application for stay of execution of consent judgment - Dismissed due to lack of grounds as dissolution of the Company was known prior to consent judgment - Defendants failed to show matters occurred post-judgment that warranted stay - Costs awarded. (Paras 1, 32)
(B) Consent Judgment - Authority of parties to consent - Defendants claimed lack of locus due to Company's winding up prior to consent judgment - Court held the issue was known before the consent was recorded. (Paras 4, 30)
Facts of the case:
The Plaintiff sought a declaration of rightful custody over machinery sold by Defendants, who claimed lack of authority due to the Company's winding up in 2016. Defendants applied for a stay of execution of the consent judgment dated 4 June 2024, arguing the Plaintiff lacked locus standi.
Findings of Court:
The court found that the Defendants’ arguments did not present new matters that arose post-judgment, and thus the application for a stay was dismissed.
Issues: Whether the Plaintiff had the authority to act for the Company post-winding up and whether the stay of execution should be granted.
Ratio Decidendi: The court ruled that the dissolution of the Company was known at the time of the consent judgment, and the Defendants could not rely on this as a ground for a stay of execution.
Result: Application dismissed with costs.
(Enclosure 49)
Introduction
[1] Enclosure 49 is the First and 2nd Defendants' application for a stay of execution of the consent judgment dated 4 June 2024 pursuant to O 45 r 11 and/or O 92 r 4 Rules of Court 2012 ( ROC ).
[2] The First and 2nd Defendants' were seeking a stay pending the disposal of civil suit no: KB-22NCVC-21 -08/2024 (2024 Suit) instituted to set aside the consent judgment.
[3] After careful consideration of the cause papers and the oral and written submissions of the parties, this Court decided to dismiss the application under encl 49. The following are the reasons for the decision.
Plaintiff's Pleaded Case
[4] The Plaintiffs claim against the Defendants was for a declaration that the Plaintiff remained the rightful custodian of one-unit Mobile Terex Pegson Crusher Model 4242SR Serial No: 420131CADRQ334163 (Machinery), which was in the 3rd Defendant's possession and for damages and costs.
[5] The Plaintiff alleged that he had been appointed custodian of the Machinery by Progressive Global Sdn Bhd (Company). The Plaintiff had appointed the First Defendant to retrieve the Machinery from Felda Bera Selatan 3 as the lease had expired.
[6] The Plaintiff and First Defendant agreed that the First Defendant would be permitted to lease the Machinery to interested parties but nothing materialized.
[7] At the end 2021, the Plaintiff found out that the First Defendant had via the 2nd Defendant, sold the Machinery to the 3rd Defendant for RM 450,000.00.
The Defendants' Defence And The First Defendant's Counterclaim
[8] The Defendants disputed the Plaintiffs locus as the Company's agent as the Company had been wound up in 2016. They only came to find this out in 2022.
[9] The First Defendant had been appointed by the Company to manage their machinery and workers at the mines in Felda Bera Selatan 3 since 2014.
[10] The Company failed to pay the First Defendant for his services and the director, Deva Sudhanshu, agreed that the First Defendant could take over the Machinery in lieu of payment. The directors of the Company also authorized the 2nd Defendant to remove the Machinery from Felda Bera Selatan 3.
[11] The First Defendant sold the Machinery to the 3rd Defendant vide agreement dated 27 September 2020 but maintained that RM 100,000.00 remained unpaid because of the Plaintiffs claim over the Machinery.
[12] The First Defendant alleged that the Company owed him RM 493,209.57 as at 30 November 2022. After setting off the purchase price for the Machinery, RM 43,209.57 was still due and owing to him. Alternatively, if the Machinery was returned to the Plaintiff, then he sought the entire amount with damages, interest and cost.
Cosent Judgment
[13] Case management directions were given and the trial date was fixed. During case management on 28 May 2024, the following was recorded in the notes of proceedings-
"Mahkamah: Mr Yohendra - PGISB has been wound up - does the liquidator know of these proceedings?...
Peguam Plaintif 1: My Lady, the Company was wound up under s 308(3) of the Companies Act 1965 , with no liquidator acting.
Mahkamah: If the company has been wound up, does the Plaintiff still have authority to act as its asset manager/custodian?...
Peguam Plaintif 1: Yes Yang Arif. We will be relying on documents in p 135 and 136 of the encl 31....
Mahkamah: When was the company wound up?
Peguam Plaintif 1: 2016 My lady
Mahkamah: The document on p 135-136 predates the winding up. What is the effect on the Plaintiff's authority to act for the company? This will be one of the issues to be addressed during the trial,
Peguam Plaintif 1: noted My Lady"
[14] On 3 June 2024, the counsel for the Defendants had filed an application to withdraw as solicitor (Enclosure 45). This application was brought to the attention of the Court on the morning of the trial.
[15] The following are the Court's notes of proceeding on the trial date:
"Dalam kamar
N. Yohendra b/p Pif Joseph Cheong b/p Defendan
NY: Hari ini ditetapkan untuk perbic
