Andrew Heng & Anor v Chong Kok Wooi

Appellant(s):

• Andrew Heng
• MASMEYER DEVELOPMENT SDN. BHD. (Dalam Likuidasi)

Respondent(s): CHONG KOK WOOI (bertindak atas kapasiti sendiri dan juga mewakili kumpulan pemilik-pemilik unit kondominium Marinox Sky Villas)

• YA Datuk Supang Lian
• YA Datuk Azhahari Kamal bin Ramli
• YA Datuk Ismail Bin Brahim

• The respondent, a unit purchaser, together with other unit owners, challenged the administrative fee of RM8,000 per unit imposed by the first appellant (liquidator) for the execution of the Memorandum of Transfer (MOT) to perfect strata titles.
• The second appellant (developer) was wound up, and the first appellant was appointed as its liquidator, with individual strata titles for the project being issued after the winding-up order.
• The High Court allowed the respondent's application, finding the fee unfair and unreasonable, and held that leave of Court was not required to proceed against the liquidator or the wound-up company.

• Whether prior leave of the Court was required for the respondent to commence an Originating Summons against the first appellant (liquidator) and the second appellant (wound-up company).
• Whether the Federal Court's decision in *N Chanthiran Nagappan v Kao Che Jen* [2023] 5 MLRA 247, which held that leave is required to sue a liquidator, was distinguishable or applicable to the present case.
• Whether the words "subject to the control of the Court" in Section 486(2) of the Companies Act 2016 (CA 2016) imply a requirement for leave to commence proceedings against a liquidator, including actions under Section 517 CA 2016.

• The Court of Appeal held that leave of the Court is mandatory before commencing any action or proceeding against a Court-appointed liquidator, as they are officers of the Court subject to its control under Section 486(2) CA 2016.
• The Court affirmed that the Federal Court's decision in *N Chanthiran* (supra) is binding and applicable, clarifying that the leave requirement extends to proceedings under Section 517 CA 2016, irrespective of whether the applicant is a creditor or contributory.
• The Court further ruled that leave is also required to commence proceedings against a wound-up company under Section 471(1) CA 2016, particularly when the action seeks to escape a liability not initiated by the company itself.
• Consequently, the appeal was allowed, the High Court's order was set aside, and the respondent's Originating Summons was dismissed due to the failure to obtain the requisite leave.