Siti Norma Yaakob FCJ:

Leave was granted to the appellant to refer six questions of law to us and these questions as framed read as follows:

1. Upon the court ordering a company incorporated pursuant to the provisions of the Companies Act 1965 (Act 125) to be wound-up and appointing a liquidator:

1.1. to what extent and within what parameters could a Receiver and Manager appointed under a power contained in an instrument, exercise powers over the assets of the wound-up company?

1.2. whether a Receiver and Manager appointed pursuant to a power contained in an instrument, by reason of either s. 233 and/or s. 277 of the Companies Act 1965, read together with sections 300 and 305 of the same Act and r. 66 of the Companies (Winding-Up) Rules continues to exercise custody and control over the properties of the company that had been wound-up and which properties "appears" to or is "prima facie" entitled to such a company, even after the court appointed liquidator had demanded its return?

1.3. whether, after a winding-up order is made by the court, are the rights and powers of a Receiver and Manager appointed under a power contained in an instrument, with regard to the documents, books and property of a company, "superior to" and/or take precedence over the rights and powers of a court appointed liquidator?

2. Whether the principles enunciated by the then Supreme Court in Kimlin Housing Development Sdn Bhd (Appointed receiver and manager) (In Liquidation) v. Bank Bumiputra (M) Bhd & Ors [1997] 3 CLJ 274 are restricted in scope and limited to the powers of a Receiver and Manager appointed under a power contained in an instrument, to dispose of a parcel of land on which a legal charge had been created under the National Land Code or applies to all the assets, be it movable or immovable, of the company that is under liquidation and in respect of which a liquidator had been appointed?

3. Whether a Receiver and Manager appointed pursuant to an instrument by a person claiming to be a secured creditor, operates outside the winding-up, without such debts being admitted or proved to the liquidator?

4. Whether the answers to any of the above questions will be different if the instrument which provides for the appointment of a Receiver and Manager incorporates thereto, a power of attorney given by the company which had since been wound-up and whether such a power of attorney can survive or exist or be valid and effective after the company is wound-up by reason of s. 4 read together with ss. 300 and 305 and the other provisions in the Companies Act 1965?

5. By reason of r. 163 of the Companies (Winding-Up) Rules 1972, whether the court which has ordered the winding-up of the company, is required in law to transfer to itself all the other matters that are pending or instituted or may be instituted in the other courts?

6. Whether a secured creditor, upon being called by a liquidator, to prove its debts by filing a proof of debt, by reason of s. 291 of the Companies Act read together with rr. 78 and 82 of the Companies (Winding-Up) Rules 1972 made thereunder, is obliged in law to do so?

The events leading to the issues raised in the six questions are in no way disputed and they go as far back as 1982. In that year Koperasi Serbaguna Kosmopolitan Berhad ("the Koperasi") made advances to Kosmopolitan Credit & Leasing Sdn Bhd ("KCL") which were secured by fixed and floating charges on KCL's assets under a debenture dated 17 March 1982 ("the debenture"). The charges have been duly registered under s. 108 of the Companies Act 1965 ("the Act"), and the fact of registration is very significant as it renders the debenture valid and effective and it binds the appellant.

By an order of court dated 7 January 1987, the Koperasi was placed under receivership and pursuant to a rescue scheme formulated by Bank Negara Malaysia, the Koperasi's deposits and liabilities were taken over by Kewangan Usahama Makmur Berhad ("KUMB"). As consideration, all the Kope