Lee Shih

Case Update: Who Has to Pay the Liquidator’s Remuneration When Winding Up Reversed?

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The Singapore Court of Appeal in AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2021] SGCA 112 dealt with an important and novel area of winding up law. If a winding up order is subsequently reversed or set aside, who should pay for all the winding up expenses, including the liquidator’s fees?

While this is a Singapore decision, it would be persuasive in Malaysia as our laws are similar. The aim of this update is to focus on this key issue and set out the takeaway points to apply in a Malaysian context.

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Cryptocurrency Legal Update: Hong Kong Court Grants Interim Proprietary Injunction over 999 Bitcoins

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The Hong Kong Court of First Instance in Yan Yu Ying v Leong Wing Hei [2021] HKCFI 3160 granted a temporary proprietary injunction to restrain 999 bitcoins (value close to US$50 million) being the subject matter of a dispute between the parties.

This case shows the consistent trend of Courts treating cryptocurrency such as Bitcoin as ‘property’ that can be subject to an injunction.

In this case, the Court granted what is known in Hong Kong as an “interim-interim injunction”.  It is similar to what is known in Malaysia as an ad interim injunction. It is a temporary measure to balance the fairness before the full arguments are heard on whether to grant the full interim injunction. Interim-interim injunctions or reliefs are a very short-term stop-gap measure.

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Case Update: Filing of Judicial Management Will Restrain Advertisement of Winding Up

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The Court of Appeal in Kumpulan Liziz Sdn Bjd (in liquidation) v Pembinaan Azam Jaya Sdn Bhd (grounds of judgment dated 25 November 2021) ruled that the judicial management moratorium will extend to restraining any advertisement or gazetting of a winding up petition.

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Ex Parte Appointment of Interim Judicial Manager over Khee San Food Industries

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On 19 November 2021, The Edge reported that the candy manufacturer, Khee San Food Industries Sdn Bhd (KSFI), has been placed under interim judicial management. KSFI is the wholly-owned subsidiary of the public-listed Khee San Bhd.

On 17 November 2021, the Court made an ex parte Order to appoint an interim judicial manager, Datuk Adam Primus Varghese Abdullah of Messrs ADAMPRIMUS, over KSFI. The interim judicial management of KSFI  in turn resulted in Khee San Bhd triggering Practice Note 17 (PN17). PN17 is essentially the financial distress criteria set by Bursa Malaysia Securities. KSFI’s assets account for over half of the total assets of Khee San on a consolidated basis.

I believe this is the first time a financial institution creditor has applied to place the debtor company under judicial management. I set out some of the guiding legal principles and the facts of this case.

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Case Update: Not Mandatory for Proposed Judicial Manager’s Affidavit

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The High Court in Re Federal Power Sdn Bhd (grounds of judgment dated 11 October 2021) granted a judicial management order over a high voltage cable manufacturing company. The Court dealt with the issue of whether the proposed judicial manager candidate must affirm an affidavit in support of the application or not.

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Case Update: Company Constitution Does Not Extend Indemnity for Directors

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The Court of Appeal in Perdana Petroleum Berhad v Tengku Dato’ Ibrahim Petra and others (grounds of judgment dated 15 October 2021) has ruled on a significant company law issue. Whether the company’s constitution alone can give rise to an indemnity by the company in favour of directors or former directors.

This decision will have an impact on company directors, auditors, company secretaries and other officers of the company attempting to rely on the indemnity clause contained in the constitution.

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