The court reaffirmed that actions against a company in winding up must obtain prior leave, with judgments lacking such authority deemed null and void.

Introduction

[1] This was the applicant defendant's application for leave to appeal against the decision of the Kuala Lumpur High COURT in dismissing the applicant defendant's appeal on 13 October 2010.

[2] The appeal before the Kuala Lumpur High COURT centred against the dismissal of the applicant defendant's application to set aside the summary judgment entered against the applicant defendant by the respondent plaintiff at the Kuala Lumpur Sessions COURT on 9 October 2009 for the sum of RM159,146.23 together with interest.

[3] A notice of motion for leave to appeal is required as the subject matter is below RM250,000.00. This is clearly set out in s 68(1) of the Courts of Judicature Act 1964 . And if the amount or value of the subject matter of the claim is RM250,000.00 or more, no leave of this COURT is required ( Phung Hoe Seng v. United Malayan Banking Corporation Bhd , [1995] 3 MLJ 487, CA; and Tong Tiong Lim v. Pentadbir Tanah Daerah, Johor Bahru & Anor; [1995] 3 MLJ 631; [1996] 1 CLJ 387; [1994] 3 AMR 2560, ).

The Notice Of Motion

[4] By way of enclosure 2a, the applicant defendant filed a notice of motion and moved this COURT pursuant to s 68(1) of the Courts of Judicature Act 1964 for an order or under the inherent powers/jurisdiction of this COURT that:

"(a) Leave of this COURT is granted to the applicant defendant to file and serve the notice of appeal against the whole of the decision of the Kuala Lumpur High COURT dated 13 October 2010.

(b) If prayer (a) above is allowed, the applicant defendant is given 14 days from the date of this order to file and serve the notice of appeal against the decision of the Kuala Lumpur High COURT given on 13 October 2010.

(c) That the costs of this application be costs in the cause; and

(d) Such other relief and/or order which this COURT deems fit."

The Facts

[5] On 22 December 2006, the Kuala Lumpur High COURT ordered the appointment of provisional liquidators to the applicant defendant's company.

[6] On 27 August 2008, the respondent plaintiff filed a suit against the applicant defendant at the Kuala Lumpur Sessions COURT vide civil suit no: 52-26710-2008 for the sum of RM159,146.23 together with interest and costs without first obtaining leave from the winding-up COURT.

[7] The respondent plaintiff realising its mistake and defects in its action then applied for leave of the winding-up COURT and leave was granted in favour of the respondent plaintiff on 6 January 2009.

[8] The respondent plaintiff then proceeded with its application for summary judgment pursuant to O 26A of the Subordinate Courts Rules 1980 and summary judgment was entered against the applicant defendant on 9 October 2009 (hereinafter referred to as "the judgment") by the Kuala Lumpur Sessions COURT.

[9] The applicant defendant subsequently filed a notice of application to set aside the judgment on 9 June 2010 supported by the affidavit of Mok Pak Hong that was affirmed on 9 June 2010 on the grounds that the action was defective ab initio and a nullity which ought to be set aside.

[10] On 3 September 2010, the Kuala Lumpur Sessions COURT dismissed the applicant defendant's application to set aside the judgment with costs.

[11] Aggrieved, the applicant defendant filed an appeal to the Judge in Chambers of the Kuala Lumpur High COURT dated 13 September 2010.

[12] Before the Kuala Lumpur High COURT, the respondent plaintiff argued that the COURT was functus officio and that the relief sought by the applicant defendant was res judicata. But the applicant defendant submitted otherwise.

[13] Functus officio is