JUDGMENT

Kamalanathan Ratnam JC

This is an application for leave to commence proceedings against the provisional liquidator for the tort of conspiracy, abuse of legal process, malicious prosecution and trespass and for consequential damages.

Facts leading to the filing of this application

TN Metal Industries Sdn Bhd is the registered owner of premises Lot 1, Lorong 10B, Telok Panglima Garang, Banting, Selangor ('Telok Panglima address'). Dreambed (Malaysia) Sdn Bhd and KKBI System (M) Sdn Bhd are two tenants of the said owner and have their place of business at the said Telok Panglima address. A fourth company called King Koil Inc Sdn Bhd has at the same premises its leased and hire purchase machinery. All four companies are the applicants herein.

Matsushita Greatwall Corp Pte Ltd ('the petitioners') filed a petition to wind up a company called KKBI Manufacturing Sdn Bhd (formerly known as King Koil Bedding Industries (M) Sdn Bhd ('the respondent company') under ss 218 and/or 143 of the Companies Act 1965 ('the Act').

In the meantime, prior to the winding-up order being made, the petitioners filed an ex parte application to appoint one Ng Pyak Yeow as the provisional liquidator ('the provisional liquidator') of KKBI Manufacturing Sdn Bhd, without security and obtained an order before Abdul Malek J on 6 April 1995 ('the ex parte order').

No sooner had he been appointed, the provisional liquidator promptly filed an ex parte summons in chambers praying for various orders amongst which were:

(1) that the bailiff of Telok Datok Magistrates' Court, Banting, Kuala Langat do hereby, in execution of the order of court made on 6 April 1995, take possession and control of Lot 1, Lorong 10B, Telok Panglima Garang, Banting, 42500 Kuala Langat; and

(2) that the bailiff immediately upon taking possession of the property deliver possession and control of the same to the provisional liquidator, Mr Ng Pyak Yeow.

In support of the above application, the provisional liquidator affirmed that on 7 April 1995 he proceeded to the place of business of the respondent company at No 64, Jalan SS22/25, Damansara Jaya, 47400 Petaling Jaya ('the Damansara address'), which said address he obtained from the annual returns of the respondent company made on 8 June 1993 and filed with the Registrar of Companies. He then proceeded to the said place of business on 7 April 1995 and was there informed by one Mr Mak that the respondent company's documents, books and other effects of business were to be found at the Telok Panglima address.

He then proceeded to the Telok Panglima address and met one Mr Cheong Tack Pook who identified himself as a director of the respondent company. He then showed the sealed copy of the order of court appointing him the provisional liquidator and requested Mr Cheong Tack Pook and his staff to vacate the premises and to hand him the keys to the property. This was flatly refused by Mr Cheong Tack Pook.

The provisional liquidator then went to the local police station and sought the assistance of one Sergeant Esa, the officer in charge of the said police station. Again Mr Cheong Tack Pook refused to vacate. On advice by Sergeant Esa, he lodged a police report of this and on further advice by the police, he tried to obtain a warrant of arrest at the Telok Datok Magistrates' Court on 8 April 1995 against Mr Cheong Tack Pook. As the learned magistrate refused to issue a warrant of arrest without the approval of this court he then made the abovesaid application and obtained the orders prayed for as stated earlier, before Abdul Malek J on 10 April 1995.

The respondent company then on 12 April 1995 filed a summons in chambers to set aside the ex parte order dated 10 April 1995 which was heard on 17 April 1995 with the provisional liquidator himself personally appearing before Abdul Malek J and consenting that the order dated 10 April 1995 be set aside.

The order dated 10 April 1995 having been set aside, the four applicants now seek leave to comm