MANSION PROPERTIES SDN BHD v. SHAM CHIN YEN & ORS

[2021] 2 MLRA 1

MANSION PROPERTIES SDN BHD v. SHAM CHIN YEN & ORS
Federal Court, Putrajaya
Rohana Yusuf PCA, Azahar Mohamed CJM, Mohd Zawawi Salleh FCJ
[Civil Appeal No: 02(i)-91-11-2019(P)]
24 November 2020

JUDGMENT

Mohd Zawawi Salleh FCJ:

Introduction

[1] This appeal concerns the proper procedure for applications under ss 366 and 368 of the Companies Act 2016 ("CA").

[2] The appeal arose out of the ex parte applications by the appellant under ss 366 and 368 of the CA in respect of a proposed scheme of arrangement between the company and its creditors. In the applications, the appellant sought orders from the High Court to convene a creditors' meeting, to restrain all proceedings against the appellant and subsequently to approve the compromise or arrangement agreed to by a majority at the creditors' meeting.

[3] The question at the heart of this appeal is whether the applications under ss 366 and 368 of the CA should be made ex parte or inter parte.

Factual Antecedents

[4] The appellant is the developer of a housing project known as D'Mansion, which includes a hotel and a condominium. The respondents are purchasers of the condominium units. The appellant did not deliver vacant possession of the condominium units within the stipulated time. The construction of the hotel had not been completed.

[5] Due to the delay in delivering vacant possession, some purchasers filed claims against the appellant for liquidated ascertained damages ("LAD") in the Sessions Court in 2017.

Previous Proceedings

[6] On 27 October 2017, the appellant filed an ex parte originating summons pursuant to ss 366 and 368 of the CA in the Penang High Court ("First OS"). In the First OS, the appellant sought an order to convene a creditors' meeting for the approval of the appellant's proposed scheme of arrangement and an order to restrain all other proceedings against the appellant. The scheme was, inter alia, to reduce the appellant's debt to RM0.20 for each RM1.00 ("the Proposed Scheme").

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