The court ruled that monetary claims related to a Sale and Purchase Agreement can be adequately addressed in liquidation proceedings, and the applicant failed to demonstrate a prima facie case warranting separate litigation.

JUDGMENT

(Application For Leave To Continue An Appeal Against A Company In Liquidation)

Kenneth St James JC:

Prelusion

[1] The Applicant sued the Respondent (Mammoth Empire). The Applicant's suit was dismissed. The Applicant appealed. The Appeal is pending. Before the Appeal is determined, Mammoth Empire was wound up. As a result, the Applicant requires the leave of Court to continue to pursue the Appeal-to obtain the reliefs and remedies prayed for in the suit. Should leave be granted to the Applicant?

The Appeal/Suit That The Applicant Wishes To Continue

[2] Mammoth Empire is the developer of the Empire Residence project in Selangor. The Applicant purchased a property from Mammoth Empire (Property). The Sale And Purchase Agreement was signed in February 2012 (SPA).

[3] The Property was completed.

[4] In August 2020, Mammoth Empire issued to the Applicant a Notice Of Delivery Of Vacant Possession (VP Notice).

[5] In December 2020, the Applicant acknowledge the VP Notice, but demanded for liquidated ascertained damages for late delivery (LAD).

[6] In January 2021, Mammoth Empire reminded the Applicant to take vacant possession of the Property and to pay the outstanding sum of RM97,117.48 allegedly due.

[7] In April 2021, the Applicant's solicitors first issued a letter demanding for vacant possession and for the LAD, and later filed Shah Alam Sessions Court Originating Summons No BA-B54-11-04/2021 (OS11).

[8] In November 2021 (on 1 November 2021), the Shah Alam Sessions Court dismissed OS 11. The Applicant appealed to the Shah Alam High Court.

[9] Before the Appeal was heard, on 10 January 2022, Mammoth Empire was wound up.

Reliefs And Remedies Prayed For In OS 11

[10] In OS 11, the Applicant prayed for-

(1) a declaration that the parties are bound by the terms of the SPA;

(2) a declaration that Mammoth Empire breached the SPA;

(3) for LAD of RM931,793.98;

(4) for a mandatory injunction that Mammoth Empire gives physical vacant possession of the Property to the Applicant.

This Application

[11] In this proceeding, the Application is worded in this way. The Applicant prays for leave to proceed with the Appeal from OS 11 to obtain Orders that Mammoth Empire-

(1) "hands-over the keys and/or physical possession" of the Property; and

(2) pays the LAD.

The Law And The Principles On Whether To Grant Leave

[12] The Applicant applies for leave under s 471 of the Companies Act 2016 . Section 471 provides that when a winding up order is made, no suit can be commenced or continued without the leave of this winding up Court.

[13] Section 471 is set out here for reference-

Section 471 . Action or proceeding stayed after winding up order

(1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes.

(2) The application for leave under subsection (1) shall be made in the Court granting the winding up order and shall be served on the liquidator.

[Emphasis Added]

[14] The Applicant must satisfy two requirements before the Court will grant leave for her to continue with the Appeal from OS 11. The Applicant must demonstrate that:-

(1) the Applicant's claim in OS 11 cannot be adequately dealt with by this winding up Court; and

(2) the Applicant has a prima facie case against Mammoth Empire in OS 11.

[15] This general principle is propounded in Mesuntung Property Sdn Bhd v. Kimlin Housing Development Sdn Bhd , 2014 MarsdenLR 2107 ( CA ). The Court Of Appeal, through Justice David Wong Dak Wah J (later Chief Judge of Sabah and Sarawak), after referring to a series of authorities with approval, held-

[24] From the above authorities, the appellant [the applicant for leave] has the burden of satisfying the Court of two criteria:

(a) The appellant's claim cannot be adequately dealt with by the winding up Court.

(b) The appellant has a prima facie case against the respondent.

[Emphasis Added]

[16] Bu