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2018 MarsdenLR 1036
COURT OF APPEAL PUTRAJAYA
WONG KIEN CHING – Appellant
Versus
SENG KIM HUAT & ANOR – Respondent
[Civil Appeal No: S-02(IM)-1943-09/2017]
Application of s 368A requires clear demonstration of how a party's conduct affects the interests of others, which was lacking in this case.
Headnote:Statute Analysis: The appeal hinges on orders under s 368A(1)(a) and (4) of the Companies Act 1965 mandating the appellant to deliver property to the Official Receiver. Facts: Rasamutu Sdn Bhd was wound up and the petitioners sought injunctions against property held by Wong Kien Ching. Findings: The High Court allowed the orders initially, but this Court found the application insufficient under s 368A.
Issues: The core issue was whether the High Court correctly interpreted s 368A.
Ratio Decidendi: The Court determined that the petitioners did not meet the criteria to invoke s 368A as they failed to demonstrate how the appellant's conduct affected their interests.
Result: The appeal is allowed, and the orders granted by the High Court are set aside.
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| 1. events leading to winding up of companies. (Para 1 , 3 , 4) |
[1] The respondents, who successfully petitioned to wind-up Rasamutu Sdn Bhd at the High Court at Sandakan on 6 June 2016, filed an application before the winding-up Court seeking several orders under s 368A (1)(a) and (4) of the Companies Act 1965 . Those orders, in effect, serve to mandatorily order the appellant, to deliver to the Official Receiver or any Court appointed Liquidator, the appellant's 208 subleases held over 208 freehold Native Titles together with his 208 Native Titles and other duplicate charges and duly executed discharge of charge over those 208 Native Titles.
[2] The order was allowed by the High Court. On appeal, we unanimously allowed the appeal after careful consideration of the submissions, the records of appeal and the applicable principles. These are our reasons in detail.
Relevant Background Facts
[3] Vide separate petitions, Rasamutu Sdn Bhd and Ria Realti Sdn Bhd were respectively wound-up on 15 April 2016 and 6 June 2016. In winding-up first, Ria Realti, the winding-up Court held that "...the "just and equitable" ground to wind up a company is sufficiently wide enough to encompass a situation where the business of a company is carried on for an illegal purpose." The winding-up Court followed the decision in Perbadanan Pertanian Selangor v. Megafores Sdn Bhd & Others, which had in turn applied Re Thomas Edward Brinmead & Sons Ltd [1897] 1 Ch 406.
[4] The petition to wind-up Ria Realti was on the basis that all the Native titled lands purchased by the company and part-financed by Public Bank Berhad and registered in the name of Wong Kien Ching, were null and void because the purchases were designed to circumvent ss 17 and 64 of the Sabah Land Ordinance . After hearing evidence of one Seng Kim Huat who is in fact the 1st respondent in this appeal, and upon certain documentary evidence, the Court concluded that "certain provisions of the Land Ordinance in particular s 17 and s 64 may have been breached."
