A court may grant leave nunc pro tunc under Companies Act provisions, but only in appropriate circumstances.

[1] The main action in this case relates to an application for a winding up order in respect of a company known as 'E & E Development Sdn Bhd' (hereinafter referred to as 'E & E'). The application for the winding up was made by a company known as 'Megah Jubli Construction Sdn Bhd' (hereinafter referred to as 'Megah Jubli'). Megah Jubli obtained the winding up order it sought on 30 June 2015.

[2] Enclosure 30 is a summons in chambers filed by a company known as 'Fujiman Development Sdn Bhd' (hereinafter referred to as 'Fujiman') pursuant to s 226(3) of the Companies Act 1965 . This provision states-

226 Copy of order to be lodged etc.

...

Actions stayed on winding up order

(3) When a winding up order has been made or a provisional liquidator has been appointed no action or proceeding shall be proceeded with or commenced against the company except-

(a) by leave of the Court; and

(b) in accordance with such terms as the Court imposes.

[3] Essentially s 226(3) provides that after a winding up order has been made, no action or proceeding shall be proceeded with or commenced against the company except with the leave of the Court and upon such terms as the Court may order (see the judgment of Hishamudin Yunus J (as he then was) in Pengurusan Danaharta Sdn Bhd v. Kasava (M) Sdn Bhd, .)

[4] Accordingly, by this application Fujiman seeks the following reliefs:

(a) Kebenaran diberikan kepada Pemohon dalam memfailkan permohonan ini;

(b) Kebenaran diberikan kepada Pemohon untuk mencelah dalam tindakan ini di bawah K 15 A 6 Kaedah-Kaedah Mahkamah 2012;

(c) Kebenaran nunc pro tunc diberikan kepada Pemohon di bawah s 226(3) Akta Syarikat, 1965 dalam memulakan, mengekalkan dan/ atau meneruskan tindakan, prosiding dan/atau keputusan Guaman Sivil No: 22NCVC-25-2/2013 (selepas ini dirujuk sebagai "Tindakan Sivil Tersebut") terhadap Responden dan/atau termasuk segala rayuan yang difailkan oleh mana-mana pihak berkenaan tindakan atau prosiding atau keputusan yang berasal dari Tindakan Sivil tersebut;

(d) Kos; dan

(e) Apa-apa perintah lanjut atau sampingan yang dianggap sesuai dan wajar oleh Mahkamah Yang Mulia ini.

Fujiman's application is objected to by E & E, Megah Jubli and the Official Receiver.

[5] The facts leading to Fujiman's application is as follows. Fujiman was the registered owner of several pieces of land. Fujiman entered into a joint venture agreement ('the JVA') with E & E to develop the lands in question. These lands were under 2 charges in favour of Malayan Banking Berhad. One of the terms in the JVA required E & E to assume financial responsibility for these 2 charges. E & E did develop the lands to a certain extent but ultimately the JVA failed. As a result of the failure, Fujiman instituted a civil action, 22 NCVC-25-2/2013 ('2013 civil suit'), against E & E and 4 others. This 2013 suit was registered in another High Court at Alor Setar.

[6] The hearing for the 2013 civil suit commenced. However, during the course of the hearing of 2013 civil suit, E & E was wound up. The winding up order of 30 June 2015 was granted vide the instant case, Winding Up Petition No 28-05-02/2015, by another Judge. It is not disputed that all parties in 2013 civil suit were fully aware of this winding up order as Mr Ai Cha Ran, the learned counsel for E & E, had informed that Court during the hearing of the winding up order However, the hearing in 2013 civil suit was not stayed as required by s 226(3) of the Companies Act. Instead the hearing went on without either party first seeking the leave of the winding up Court as required by s 226(3).

[7] On the 14 December 2016 the Court in the 2013 civil suit entered judgment in favour of Fujiman. E & E being dissatisfied with the 14th December judgment appealed against that ju