JUDGMENT

Abang Iskandar Abang Hashim PCA:

Introduction

[1] The Applicants sought leave to appeal under s 96(a) of the Courts of Judicature Act 1964 ("CJA") against the decision of the Court of Appeal which ruled, that following Ong Kim Chuan & Anor v. Lembaga Kumpulan Wang Simpanan Pekerja [2009] 2 MLRA 565; [2009] 5 MLJ 807; [2009] 6 CLJ 586 ("Ong Kim Chuan"), "the directors may be sued independent of the company...and that s 46 of the Employees Provident Fund Act 1991 ('EPF Act') does not bar the EPF to name only director in their claim".

[2] The Court of Appeal, in so ruling, had thus affirmed the granting of summary judgment by the High Court under O 14 of the Rules of Court 2012 ("ROC"), upon finding that there are no issues to be tried.

[3] In this application for leave to appeal, the Applicants proposed seven questions of law ("QOL") revolving around the meaning and application of s 46 of the EPF Act relating to:

(i) the naming of a company who is an employer (and/or in the case of a company in liquidation, by involving the company and the liquidator) as a party to the suit together with its registered directors (QOL 1, 2 & 6);

(ii) the liability of the directors when the company is not made a party and its liability not being established in the first place, and in the case of a company in liquidation, the liability of the directors to pay when the statutory debt becomes a preferential debt claimable against the company and/or its appointed liquidator (QOL 3, 5 & 6);

(iii) the question of whether Ong Kim Chuan is good law (QOL 4); and

(iv) the correct interpretational approach (QOL 7).