The substitution of an executor does not invalidate prior court orders against the deceased, as proceedings continue with the executor assuming all obligations of the estate.

(Dismissing Application To Set Aside Order Appointing Receiver)

Prelusion

[1] This is an Application by a substitute defendant to set aside an Order that was made against the original defendant (now deceased).

[2] The plaintiff sued the original defendant. The plaintiff recorded a default judgment against the original defendant. The plaintiff obtained an Order to charge the original defendant's shares in a company. The plaintiff also obtained an Order appointing a Receiver to sell the shares, to utilise the sale proceeds to satisfy the judgment sum.

[3] The original defendant then passed away.

[4] The plaintiff then obtained an Order to substitute the executor of the original defendant's estate as the defendant in the suit.

[5] The substitute defendant (in his capacity as the executor of the estate) applies to set aside the Order appointing the Receiver.

[6] Should the Order appointing the Receiver be set aside?

Chronology Of The Pertinent Facts And Proceedings

Suit 139

[7] The Plaintiff here: Ng Kim Lim Holdings Sdn Bhd (P) sued Kho Ah Soon (now deceased) by filing Penang High Court suit PA-22NCVC-139-02/2012 (Suit 139).

[8] By a Judgment In Default dated 6 June 2012 (JID), P entered judgment against Kho Ah Soon (note: while he was alive) for the sum of approximately RM12 million.

[9] Kho Ah Soon held 166,667 ordinary shares in the company: Shoonshyan Properties Sdn Bhd (Shares).

[10] By an Amended Order Absolute Imposing Charge On Securities dated 7 October 2015 (originally dated 5 August 2014), the Shares were charged to satisfy the judgment sum under the JID. I will refer to this Order as the "Charging Order".

[11] The Charging Order was made while Kho Ah Soon was alive.

[12] By an Order dated 26 November 2015, the presiding High Court appointed Lim Tian Huat (Receiver), a licensed liquidator, as the Receiver for the Shares. The Order also sets out the Receiver's authority and obligations. I will refer to this Order as the "Order appointing the Receiver".

[13] The Order appointing the Receiver was also made while Kho Ah Soon was alive.

This OS 1163

[14] In December 2016, P filed against Kho Ah Soon this Originating Summons No PA-24NCVC-1163-12/2016 (OS 1163). The purpose of OS 1163 was to obtain an Order to direct and enable the Receiver to sell the Shares, to satisfy the judgment sum under the JID.

[15] By an Order dated 16 March 2017, the presiding High Court granted the Receiver the liberty to sell the Shares, subject to a minimum price of RM18,666,666.67.

[16] By an Order dated 21 November 2018, the High Court allowed the Receiver to reduce the minimum price for the Shares to RM16.8m.

[17] The Orders above were made while Kho Ah Soon was alive.

[18] On 3 October 2019, Kho Ah Soon passed away.

[19] On 4 December 2019, the eventual substitute defendant here: Kho Kok Hong (D) obtained the Grant Of Probate to administer the estate of Kho Ah Soon (deceased).

[20] By an Order dated 18 May 2021, the High Court substituted D, as the executor of Kho Ah Soon's estate, as the named defendant in OS 1163, in place of Kho Ah Soon (deceased). I will refer to this Order as the "Substitution Order".

[21] The terms of the Substitution Order include these terms:

(a) that D, as the executor of the estate of Kho Ah Soon (deceased), appointed under the Grant Of Probate dated 4 December 2019, be made a party to this