Directors are jointly and severally liable for unpaid Employees Provident Fund contributions under the Employees Provident Fund Act, regardless of the company's liquidation status.

Introduction

[1] The interlocutory application filed by the Plaintiff before me is for a summary judgment under O 14 Rules of Court 2012 for the Defendants to be held liable to pay the outstanding Employees Provident Fund contributions to the Plaintiff.

[2] On 31 May 2023, I allowed the Plaintiff's application with costs. The Defendants are aggrieved and appeal to the Court of Appeal.

[3] This judgment contains the reasons for my decision.

The Background Facts

[4] The Plaintiff instituted a suit against all the 4 Defendants for the outstanding employees provident fund contributions. The outstanding amounts are as follows:

(a) against the First, Second and Third Defendants, jointly or severally, is RM2,951,000.00 for the period from September 2021 till July 2022 together with the dividend and late payment charge.

(b) against the Fourth Defendant, is RM330,776.00 for the period of July 2022 together with the dividend and late payment charge.

[5] In the defence, the Defendants admit as below:

(a) the Defendants are the registered directors of Serba Dinamik Group Berhad (No Pendaftaran: 200401024953/663460-T) [after this is refer to as "the Company"].

Based on the record, the First, Second and Third Defendants are the directors of the Company from 12 September 2006 till now and the Fourth Defendant is the director of the Company from 96-2006 till now.

(b) the Company is incorporated under the Companies Act 1965. On 23 August 2022, the Company has been winding up at the Kuala Lumpur High Court and a Licensed Liquidator was appointed as the Interim Liquidator for the Company.

(c) under s 2 of the Employees Provident Fund Act 1991 (Act 452), the Company is the employer vide reference no: 16264504 and is responsible for the monthly payment of the EPF contribution for the employees to the Plaintiff. Section 2 of Act 452 reads:

"employer" means the person with whom an employee has entered into a contract of service or apprenticeship and includes:

(a) a manager, agent or person responsible for the payment of salary or wages to an "employee";

(b) any body of persons whether or not statutory or incorporated; and

(c) any Government, department of Government, statutory bodies, local authorities or other bodies specified in the Second Schedule and, where an employee is employed with any such Government, department, authority or body or with any officer on behalf of any such Government, department, authority or body, the officer under whom such employee is working shall be deemed to be an employer:

Provided that no such officer shall be personally liable under this Act for anything done or omitted to be done in good faith by him as an officer of such employer;

(d) the Defendants denied and put the Plaintiff of a strict proof pertaining to the outstanding EPF contribution amount.

(e) the Defendants pleaded as follows:

• Defendan-Defendan tidak pernah menerima sebarang notis dan/atau dokumen dan/atau butiran berkaitan dengan baki tunggakan amaun taksiran caruman KWSP tersebut.

• Plaintif diletakkan atas beban pembuktian bahawa:

(i) baki tunggakan amaun taksiran caruman KWSP tersebut adalah bagi pekerja-pekerja yang bekerja dan/atau masih bekerja dengan Defendan Pertama bagi tempoh September 2021 hingga Julai 2022 seperti mana yang dituntut.

(ii) baki tunggakan amaun taksiran caruman KWSP tersebut adalah tidak jelas