Liquidators are not personally liable for acts performed in their capacity unless misfeasance or personal misconduct is proven.

JUDGMENT

Ahmad Murad Abdul Aziz J:

Introduction

[1] Enclosure 1 is the Applicants' application for leave nunc pro tunc to commence and continue proceedings against Kumpulan Bumiklas Sdn Bhd (In Liquidation), ("the Respondent"), Hong Ji Keng, the Liquidator of the Respondent, and the estate of Michael Joseph Monteiro, the former Liquidator (collectively referred to as "the Liquidators") and other remedies arising from the purchase of a property under a sales and purchase agreement dated 11 March 1998 ("the SPA") between the Applicants and the Respondent.

Background Facts

[2] The Respondent was the developer of a commercial development project involving 59 units of three-storey shop offices located at Pekan Baru Subang ("the Project"). On 16 March 1998, the applicants entered into a sale and purchase agreement with the Respondent for the purchase of a shop office held under HS(D) 110997, PT No 32906, Pekan Baru Subang, Mukim Sungai Buloh, District of Petaling, Selangor ("Property") at a purchase price of RM440,000.00 ("the Original SPA").

[3] Construction of the Project commenced in 1996. However, the Respondent encountered financial difficulties and the Project was stopped some time in 2004. On 19 November 2007, the Respondent was wound up and Michael Joseph Monteiro (now deceased) and Heng Ji Keng were appointed as the Liquidators of the Respondent.

[4] Some time in late 2012, in an effort to revive the Project, the Liquidators devised a proposed Scheme of Arrangement under s 176(3) and (4) of the Companies Act 1965 (" CA 1965"), which was sanctioned by this Court on 19 March 2013 with the support of all the scheme creditors of the Respondent, including the Applicants ("the Scheme").

[5] Under the terms of the Scheme, a company, International Construction & Civil Engineering (M) Sdn Bhd ("ICEM"), was to be appointed as a white knight to take over and revive the Project.

[6] The salient terms of the Scheme are as follows:

(See the Scheme at p 82-9 Enclosure 2, Exhibit TKC-3):

"4.0 PROPOSED SCHEME OF ARRANGEMENT - SALIENT FEATURES

4.1 The terms of the Proposed Scheme are as follows:

ii. Purchasers

The Purchasers shall be deemed to have agreed and entered into the Supplemental Agreement and Specific Power of Attorney as per Schedule B with ICEM and consented to the absolute assignment of their respective SPA and the Supplemental Agreement to ICEM. Thereafter, the rights and obligations of the Purchasers shall be subject to the SPA, the Supplemental Agreement and the Purchasers shall be subject to the SPA.

…

4.7 With effect from the fulfilment of the Scheme Conditions Precedent, liquidated damages for late delivery of vacant possession under the Sale and Purchase Agreement shall cease to continue to accrue.

4.8 The Outstanding Progress Billings form part of the Company's assets and are to be utilized to defray the costs incurred in the liquidation of the Company and any surplus thereafter will be made available for distributions under s 292 of the Act.

…

4.10 The Purchasers shall not in any event have any claims whatsoever against the Liquidators.

…

10.1 In formulating and proposing the Proposed Scheme of Arrangement the Liquidators act strictly as agents for and on behalf of the Company and the Liquidators disclaim any personal liability for any acts or omission howsoever arising from or in connection with the Proposed Scheme of Arrangement."

[7] Pursuant to the Scheme, the Applicants, the Respondent and ICEM were deemed to have entered into a Supplemental Sales and Purchase Agreement ("Supplemental SPA").

(See pages 98-17 Enclosure 2 Exhibit TKC-3)

[8] The salient terms of the Supplemental SPA are as follows:

"2.2 The Purchaser hereby consents to the Company assigning the SPA to the White Knight and the Purchaser(s) shall be subject to and be governed by exclusively by the terms and conditions of this Agreement and the SPA shall be deemed varied to the extent set out in the terms and conditions of this Agreement.

…

3.2.2 The White Knight warrants to t