The Applicant held an absolute assignment of rights to the Unit, which is not part of the Company's assets in liquidation under Section 483 of the Companies Act 2016.

JUDGMENT

Nadzarin Wok Nordin JC:

Enclosure 1

[1] There is before. This Court a notice of Motion dated 22 October 2020 (Application) filed by the applicant HSBC Bank Malaysia Berhad (Applicant) for inter alia as follows:

i. that leave be granted to the Applicant to commence the action against Bala Subramaniam a/l Rasu the Liquidator (Liquidator) of the respondent company Valiantview Construction Sdn Bhd (Company)

ii. that the Vesting Order dated 26 June 2018 (VO) obtained by the Liquidator shall exclude and have no effect on Unit no 2-G- 07 (Unit)situated in the housing development known as 'Casa Suria Condominium' (Project) and erected on the master titled GM5499, Lot 13146, Mukim Hulu Langat, District of Hulu Langat, State of Selangor (Land)

[2] The grounds for the Application are summarized as follows:

a) the VO had vested onto the Liquidator certain units in the Project 

b) the Unit is one of the units in the Project which was vested to the Liquidator under the VO

c) prior to the VO, the interest, rights and title to the Unit had been absolutely assigned to the Applicant

d) the purchase price of the Unit has been fully settled and paid to the Company

e) the Unit does not belong to the Company and the Liquidator is not entitled to have the Unit vested in him

Background Facts

[3] The Applicant is a financial institution.

[4] One, Megatalent Sdn Bhd (Megatalent) is the owner of the Land and was the first developer to develop the Project on the Land.

[5] On 7 July 2005 Megatalent had sold the Project together with the Land to the Company.

[6] The Company had sold the Unit to one Law Weng Kit (Original Purchaser), who had subsequently sold the Unit by way of a sub sale to one Saraswathy a/p Krishnan (Purchaser) by way of a sale and purchase agreement dated 30.30212 (SPA).

[7] The Applicant had granted a financing facility to the purchaser to part finance the purchase of the Unit (Banking Facility).

[8] In return thereof, the Purchaser had by way of a Loan Agreement Cum Assignment dated 26 September 2012 (Assignment) absolutely assigned all her interest, rights and titles in the said Unit as security for the repayment of the Banking Facility.

[9] Prior to the execution of the Assignment, the Company has by way of a letter dated 2 May 2012 confirmed that inter alia the purchase price for the Unit has been fully settled.

[10] By way of a Notice of Assignment dated 6 August 2012 (Notice of Assignment) the Applicant had duly informed and given notice to the Company that the Purchaser has assigned absolutely all her rights, title and interest in the Unit in favour of the Applicant and the Company had acknowledged receipt of the Notice of Assignment on or around 7 August 2012.

[11] The Company was subsequently wound up on 12 November 2015 wherein the Official Receiver was appointed as the liquidator of the Company.

[12] Bala Subramaniam Rasu (Liquidator) was thereafter appointed the Liquidator of the Company on 28 August 2017.

[13] After being appointed by the Court on 28 August 2017 as the liquidator in place of the Official Receiver, the Liquidator then made arrangements to rehabilitate Block 1 of the Project including but not limited to conducting a verification of ownership exercise (VOE) for the units in the Project and to realize the assets of the Respondent.

[14] It was contended that amongst the VOE undertaken included but was not limited to the works done in informing all relevant stakeholders including the JMB, Majlis Perbandaran Kajang, Jabatan Perumahan Negaram the Lembaga Perumahan Selangor, the purchasers and their financiers of

a) the Liquidators appointment;

b) the VOE

c) whoever had a beneficial interest in any of the units in the Project to revert to the Liquidator and to forward the relevant documents requested no later than a specified date (which dates the Liquidator states were extended a number of times)

[15] On 18 September 2017 the Liquidator had duly advertised a notice in a local newspaper, the New Straits Times of the above and that on