Mohd Ghazali Yusoff JCA:

[1] There are two appeals before the court. The appeals are against the decision of Zainun Ali J (as she then was) in allowing the applications of the liquidator of Tien Ik Enterprises Sdn Bhd, the 1st respondent and David Kuok Khoon Hin, the 2nd respondent to set aside an ex parte order granting leave to apply for issue of order of committal against them.

The Background

[2] The 1st respondent was wound up on 9 June 1994 under s 218(1)(i) of the Companies Act 1965 ("the Act")vide Winding-Up Petition No: D2-28-187-1990 presented by Woodsville Sdn Bhd, ie, the appellant.

[3] Pursuant to the aforesaid winding-up order, Gong Wee Ning (hereafter referred to as "the liquidator") was appointed as one of the liquidators for the 1st respondent.

[4] On 10 August 1998 the appellant filed an application for an order to remove the liquidator (hereafter referred to as "the removal application"). One of the grounds raised by the appellant to support the removal application was on an allegation that the liquidator has failed to carry out a proper investigation in relation to the 1st respondent's beneficial ownership of three pieces of land, the particulars of which are as follows:

(a) Certificate of Title No 8864;

(b) Lease of State Land Title No 1395; and

(c) Lease of State Land Title No 1020;

(hereafter referred to as "the Tuallang lands") which were then registered in the name of a locally incorporated company known as Tanjong Tin Dredging Malaysia Sdn Bhd ("TTDM"). At the material time the 1st respondent owned all the shares of TTDM.

[5] The removal application was dismissed by the court on 31 May 2000 and is now pending appeal before this court.

[6] On 20 April 2001, the appellant filed an ex parte application pursuant to O 52 r 2 of the Rules of the High 1980 ("the Rules") for leave for issue of committal proceedings against the liquidator and David Kuok Khoon Hin, ie, the 2nd respondent (hereafter referred to as "David Kuok") who was at the material time a member of the committee of inspection appointed to act with the liquidator, for their failure to disclose and or concealing to the court the existence of the 1st respondent's beneficial interest in the Tuallang lands.

[7] The grounds of the application for leave for issue of committal proceedings were that the liquidator and David Kuok have affirmed affidavits, either personally and or on their behalf and filed in the removal application, wherein they stated that the 1st respondent has no beneficial interest in the Tuallang lands. It is alleged that the statements made by each of them were untrue and that they knew and or ought to have known as untrue. It is further alleged that the liquidator and David Kuok failed to disclose the true position of the Tuallang lands in the removal application even after they found out the existence of the Tuallang lands and that the beneficial interest of the same vest in the 1st respondent. It is finally alleged that the liquidator had committed contempt of court by failing to conduct any investigation on the existence of the Tuallang lands.

[8] The application for leave sought for issue of committal proceedings against the liquidator and David Kuok was allowed by the learned judge on 22 June 2001.

[9] On 6 August 2001, the liquidator filed an application by way of notice of motion (encl 230) to set aside the said ex parte order granted against him. Subsequently on 11 October 2001 David Kuok made a similar application (encl 236). Both applications to set aside the said ex parte orders were allowed by the learned judge on 24 July 2003 and hence, these appeals.

[10] In allowing the liquidator's application to set aside the said ex parte order, the learned judge said that following Zainal Abidin Puteh & Anor v. Che Wan Dvpt Sdn Bhd, [1992] 2 MLJ 233, "there has to be leave of court before proceeding against liquidators and receivers" and that this requirement "cannot be ignored since these are officers of the court". As the appellan