JUDGMENT

Ramly Ali J:

[1] In the present originating summons, the plaintiff seeks a declaration that Dr. Ler Cheng Chye of Messr. Ler Lum & Co., having been validly nominated by the Members of Empire Legacy Sdn. Bhd. at a Members' meeting held on 19 July 2005 shall be the liquidator of the said Empire Legacy Sdn. Bhd., particularly in the absence of a valid nomination on the part of the creditors; or alternatively, that Dr. Ler Cheng Chye of Messrs. Ler Lum & Co. shall be a liquidator of Empire Legacy Sdn. Bhd. instead of the persons purportedly nominated by the creditors namely Mok Yuen Lok and Onn Kien Hoe of Messrs. Horwarth.

Relevant Background

[2] There is a company called Empire Legacy Sdn. Bhd. It is insolvent. On 19 July 2005 the plaintiff (claimed to be the shareholder of Empire Legacy) passed resolutions for the company to be voluntarily wound-up; and for the nomination of one Dr. Ler Cheng Chye as liquidator of the company.

[3] On the same day (19 July 2005) the defendants (Mok Yuen Lok and Onn Kien Hoe) were also appointed by the creditors as liquidators of Empire Legacy pursuant to a resolution of the creditors.

By the amended originating summons herein, the plaintiff seeks declaratory relief that Dr. Ler and not Mok & Onn, as the true and proper liquidator of Empire Legacy.

Plaintiff's Arguments

[4] The plaintiff's originating summons was filed pursuant to s. 261(2) of the Companies Act 1965 which inter alia, provides:

... where different persons are nominated any director member or creditor may, within seven days after the date on which the nomination was made by the creditors, apply to Court for an order directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors.

[5] The plaintiff therefore argues that if the company's creditors did not validly nominate a liquidator at the creditors' meeting, then the company's nomination (by the shareholders) would be unequivocally deemed by law to be the liquidator of the company. The plaintiff further argues that in law there can be no nomination (of liquidator) by the creditors unless a vote was taken and a resolution passed at the creditors meeting that such nomination be made; in fact, no such voting took place and no such resolution was passed at the creditors meeting; therefore, since no person was appointed as liquidator by the company's creditors, s. 261(1) of the Companies Act 1965 dictates that, Dr. Ler who was nominated or appointed by the shareholder (and hence by the company) should be the liquidator of the company.

Defendant's Arguments

[6] The defendants, on the other hand argue that the plaintiff, who is not a director, member nor creditor of Empire Legacy, has no locus standi to challenge the appointment of the defendants as liquidators. The defendants further contend that the shareholders' nomination or appointment of Dr. Ler as liquidator at the EGM on 19 July 2005 is invalid on the ground that the said EGM was not attended by Empire Legacy's bona fide shareholder, Li-Foong Industrial. The defendants further argue that the appointment of Dr. Ler as provisional liquidator is premature and improper, on the ground that it was made before a statutory declaration of insolvency being lodged with the Registrar of Companies and the official receiver as required under s. 255(1) of the Companies Act 1965. The defendants also contended that the appointment of Dr. Ler as liquidator was for collateral purpose to control the affairs and liquidation process of Empire Legacy.

Findings Of The Court

[7] The said company Empire Legacy was insolvent and voluntarily wound-up. As to the necessity for meetings in the voluntary liquidation of an insolvent company, s. 260(1) of the Companies Act 1965 is relevant and reads:

The company shall cause a meeting of the creditors of the company to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the reso