JUDGMENT

Noor Hisham Ismail J:

Introduction

[1] This is an application by Sabah Development Bank as the 1st Respondent ("R1") (Encl 29) to strike out the Notice of Motion dated 5 August 2024 (Encl 1) filed by GST Builder Sdn Bhd (Company No: 1049459 - V) and Kwang Fatt Heng Enterprises Sdn Bhd (Company No.: 496089 - P) ("the applicants") under O 18 r 19(1)(a), (b), (c) and (d) or O 92 r 4 of the Rules of 2012.

[2] The grounds as stated by R1 in Encl 29 are as follows:

(a) The applicants have no locus/right in law to bring the action as stipulated in Encl 1 against R1, in that the applicants have failed to state in the intitulement the relevant law which confers the applicants such power to bring an action against R1;

(b) The 1st Applicant has failed to disclose a cause of action against R1, in that R1 as a secured creditor and a charge holder over the Lands, possess an indefeasible interest, and this trumps any claim an unsecured creditor, ie the applicants, if proven, may have; and

(c) That Encl 1 is defective in that the reliefs sought by the applicants have not been sought at the appropriate forum.

[3] At the conclusion of the hearing, this Court dismissed Encl 29. R1 has now filed an appeal against this Court 's decision with the Court of Appeal.

[4] The following is this Court 's grounds for the said decision.

The Relevant Cause Papers

[5] The cause papers and affidavits relevant to the hearing of this instant application are as follows:

(i) Notice of Motion of the applicants dated 5 August 2024 [Encl 1]

(ii) Affidavit in Support affirmed by Fong Soon Ming on 29 July 2024 [Encls 2 & 3];

(iii) R1's Application for Striking Out via Notice of Motion dated 25 February 2025 [Encl 29];

(iv) Affidavit in Support affirmed by Abdul Razak bin Hamid on 25 February 2025 [Encl 30];

(v) Applicants' Affidavit in Reply affirmed by Fong Soon Ming on 13 March 2025 [Encl 33];

(vi) R1's Affidavit in Reply to Encl 33 affirmed by Abdul Razak bin Hamid on 27 March 2025 [Encl 34].

[6] Enclosure 1 in essence is an application by the applicants for leave to commence the instant matter and if granted to proceed to hear all other reliefs prayed for against the respondents under various provisions of the Companies Act 2016 as well as O 29 Rules of 2012 together with the inherent jurisdiction of the Court as contained in O 92 r 4 Rules of 2012.

[7] Enclosure 1 has yet to be heard on its merits.

Salient Facts

[8] Goodwill Division Sdn Bhd (In Liquidation) (Company No: 868062 - P) ("the 5th Respondent") ("R5") had been granted financial assistance by Sabah Development Bank ("the 1st Respondent") ("R1") on several occasions between 2011 until 2014.

[9] To that end, R5 had executed four (4) debentures in favour of R1 and had charged its assets as collaterals. The debenture and charge documents were all lodged with the Companies Commission of Malaysia.

[10] At the instance of a third party, R5 was wound up on 2 April 2018.

[11] Upon being wound up, the Malaysian Department of Insolvency (MDI) was appointed as R5's liquidator.

[12] On 14 October 2019, MDI called for a creditor's meeting where Augustine A/L T.K James was nominated to act as R5's private liquidator.

[13] Augustine A/L T.K James was then appointed on 17 December 2019 as R5's liquidator replacing MDI.

[14] On 7 September 2018, R1 through its solicitors Messrs Jayasuria Kah & Co informed R5 that its outstanding debt with R1 stood at RM72,266,726.20 as of 31 August 2018.

[15] On 15 March 2019, R1 appointed R2 and R3 as R5's Receiver and Managers for the said debentures.

[16] R2 and R3 resigned on 9 December 2023 and R4 subsequently was appointed as R5's receiver and managers.

[17] The applicants are both creditors of R5.

[18] The applicants filed Encl 1 seeking for reliefs in respect of properties managed and/ or sold and/ or transacted by R2, R3 and R4 belonging to R5.

[19] The applicants contend that R5 had a total of five (5) unsecured creditors and that the total claim made by the unsecured creditors that was accept