A liquidator appointed under the Companies Act can only be removed if substantial evidence of unfitness or conflict of interest is shown. Mere suspicion or technical objections are insufficient for removal.

[1] The Applicant, one Soon Lee Huat Palm Oil Mill Sdn Bhd, claimed to be both a creditor and contributory of the Respondent company, Stable Win Sdn Bhd ('SW') which was wound-up pursuant to a petition presented by one AA Sawit Sdn Bhd ('the Petitioner'). On the basis of its alleged status as Creditor and/or contributory, the Applicant instituted this interlocutory application for inter alia an order pursuant to s 232(1), companies Act, 1965 (' CA ') that the Court appointed Liquidator of the Respondent be removed from continuing to serve as a Liquidator.

Preliminary Point

[2] The Applicant raised a preliminary objection with regard to the admissibility of the affidavit in reply/opposition dated 25 November 2013 filed by the Liquidator on 26 November 2013 on the ground that it was filed and served out of time. The Applicant invoked O 32, r 13 of the Rules of , 2012 ('ROC') which stipulates that a party intending to reply to an affidavit shall file his affidavit and serve it on the other party within 14 days from the date the sealed application and the affidavit in support thereof were served on him whichever is later. The sealed application was served on 31 October 2013 meaning that the 14 day period prescribed for filing and serving the affidavit in reply expired on 14 November 2013 which was not disputed. Neither was it disputed that the Liquidator's affidavit in reply was filed and served out of time on 26 November 2013.

[3] As the terms of O 13, r 13, ROC are mandatory, the Applicant contended that the Liquidator's affidavit in reply should be rejected and disregarded for the above reasons. Hence, that there was no evidence in opposition to the Applicant's affidavit on the facts therein in support of the Application. There was no application for extension of time to file and serve the Liquidator's affidavit out of time. The Applicant referred to Perbandaran Nasional Insurans Sdn Bhd v. Pua Lai Ong , [1996] 3 CLJ 312 CA ; Yong Kon Fatt v. IWK Sdn Bhd ; .

[4] The Liquidator, on the other hand, contended that the objection raised was of a technical nature and should not be considered as no prejudice was occasioned to the Applicant, who could file a further affidavit in reply if it so wished. Furthermore, that the delay of about 12 days was not so inordinate and of such a fundamental nature that went to the root of the matter. Reference was made to the principle as embodied in O 1A, ROC that the overriding consideration is the justice of the case, as follows:

"In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.".

Also to O 2, r 3 ROC which in clear and express terms provides that:

"A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision or these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both.".

[5] The principle that the Court ought to adopt in dealing with preliminary objection premised purely on technical non-compliance was expressed with clarity by Low Hop Bing, J (as he then was) in Terrance Simon Marbeck v. Kerajaan Malaysia , in the following passage:

"I am of the view that the preliminary objection on the issue in respect of the time required for filing and serving the defendant's affidavits strictly revolves around a technicality. As we move towards the era of facilitating the process of litigation, the raising of preliminary objections on technical grounds would certainlay and clearly be a th