Leave must be obtained from the Winding Up Court before proceeding against a company under liquidation, as stipulated by the Companies Act, rendering any action initiated without leave void ab initio.

References

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Ng Gim Siong (hereinafter referred to as "the Claimant") by Strenuus Construction Sdn Bhd (hereinafter referred to as "the 1st Respondent") on 18 March 2020. The 2nd and 3rd Respondents were joined as parties vide Interim Award No 1788 of 2022 dated 15 August 2022.

Introduction

[2] The Respondents filed an application before this Court on 28 August 2023 (Encl 99A) under s 29(fa) and (g) of the Industrial Relations Act 1967 for an order that the Claimant's claim be struck out.

Grounds For The Respondents' Application

[3] The grounds for the Respondents' application are contained in the Affidavit In Support of Poon May Yien affirmed on 21 August 2023 ("the Respondents' Affidavit") and briefly are as follows:

(i) that the 1st Respondent had been wound up by an Order of the High Court dated 10 November 2021 ("the Winding Up Order") vide Shah Alam High Court Winding Up No BA-28NCC-13-01/2021;

(ii) the Claimant had active knowledge of the status of the 1st Respondent but opted to disregard the pre-requisite laid down under s 451(2) of the Companies Act 2016 ;

(iii) the Claimant had failed to obtain the necessary leave from the Court to commence this action against the 1st Respondent;

(iv) thus, the Claimant does not possess any merit and/or cause of action in initiating this action against the 1st Respondent.

The Claimant's Response

[4] The Claimant's response can be found in the Affidavit In Reply affirmed by Ng Gim Siong on 11 September 2023, wherein the Claimant contends as follows:

i. the 1st Respondent does not have the locus standi to file the application as it had already been wound up and that the 1st Respondent's solicitors did not obtain any sanction from the Winding Up Court to act for the 1st Respondent in this application and thus the application is null and void and ought to be struck out;

ii. Section 451(2) of the Companies Act 2016 is not applicable in an Industrial Court proceeding;

iii. if leave is required for the Claimant to proceed in this matter, then the Winding Up Order had automatically stayed all proceedings and thus there is no legal basis for the matter to be struck off on the ground that leave had not been obtained by the Claimant;

iv. the Claimant has a cause of action and/or merits against the 2nd and 3rd Respondents.

The Decision

[5] At the outset, it was not disputed by the parties that the 1st Respondent had already been wound up vide the Winding Up Order on 10 November 2021. Due to the said Winding Up Order, the question of whether leave to proceed with this action by the Claimant against the 1st Respondent is required comes into question.

[6] Learned Counsel for the Respondents submits that due to the Winding Up Order against the 1st Respondent, ss 451(2) and 471(1) of the Companies Act 2016 is applicable in the circumstances in that the Claimant must obtain leave from the Winding Up Court before proceeding with his case here.

[7] Section 451(2) of the Companies Act 2016 provides:

"After the commencement of the winding up, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court may require".

[8] More crucially for the matter at hand, s 471 of the Companies Act 2016 provides:

"(1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes.

(2) The application for leave u