The High Court in the decision of Top Builders Capital Berhad and two others (grounds of judgment dated 30 April 2021) set out certain important principles on scheme of arrangement law. The decision dived deep into issues on assessing the proof of debt for the creditors’ vote in a scheme and how to obtain leave to proceed against a restraining order.
The Federal Court in the Mansion Properties decision (see the grounds of judgment dated 24 November 2020) held that the application for a restraining order in a scheme of arrangement can be made ex parte (without notice).
This makes it advantageous for a distressed company to seek urgent moratorium protection through a restraining order. The distressed company can then pursue the debt restructuring in a scheme of arrangement and to have stability.
The Companies Commission of Malaysia (SSM) has issued its Consultative Document Companies (Amendment) Bill 2020. The proposed amendments cover a wide range of areas. I will write another time on some of the other areas like beneficial ownership and other amendments.
One key aspect of the Companies Amendment Bill 2020 is the very significant amendments and strengthening of the restructuring framework through the scheme of arrangement and corporate rescue mechanisms. The proposed amendments follow similar moves taken by the United Kingdom and Singapore in assisting and helping distressed companies and ensuring safeguards for creditors’ interests.
I highlight the 10 most significant restructuring and corporate rescue amendments which are in the proposed Companies Amendment Bill 2020. I did take part in the initial consultation process as a member of some of the professional bodies. I very much welcome these much-needed restructuring and relief tools to help distressed businesses in the Covid-19 environment. Continue reading
In response to COVID-19, the UK has fast-tracked its Corporate Insolvency and Governance Bill (the PDF copy of the Bill is here and with helpful Explanatory Notes). The overarching objective of this Bill is to provide businesses with the breathing space they need to continue trading during this difficult time and to avoid insolvency. I set out seven of the key measures that UK is introducing and the possible reforms that Malaysia can adopt.
The High Court has again confirmed that for the initial grant of a restraining order in a scheme of arrangement, the applicant must meet all the pre-conditions in section 368(2) of the Companies Act 2016 (CA 2016).
This was confirmed in the recent decision in Lagenda Erajuta Sdn Bhd (Grounds of Judgment dated 20 February 2020).
I had earlier written about a High Court decision that set aside a restraining order. The Court held that the applicant must meet the statutory pre-conditions for the grant of a restraining order in a scheme of arrangement from the very initial application stage.
The High Court has now issued its grounds of judgment dated 3 May 2019 in the case involving Barakah Offshore Petroleum Berhad and PBJV Group Sdn Bhd.