Noble Energy Construction Sdn Bhd v Sim Soon Construction & Trading

Appellant(s): Noble Energy Construction Sdn Bhd

Respondent(s): Sim Soon Construction & Trading

• YA Datuk Wong Kian Kheong
• YA Datuk Seri Mohd Firuz Bin Jaffril
• YA Datuk Leonard David Shim

• The appellant company engaged the respondent to construct a hotel and restaurant project, but a sum of RM864,218.63 remained unpaid for completed construction works.
• The respondent filed a winding up petition against the appellant based on this debt, and the High Court ordered the appellant wound up, appointed the Official Receiver as liquidator, and awarded costs of RM15,000.00 to the respondent.
• The appellant appealed against the winding up order, and at the hearing both parties informed the Court of Appeal that they had reached a consent order whereby the appellant would pay RM420,000.00 to the respondent in full and final settlement, and applied for the Court to record this consent order.

• Whether the High Court, in winding up proceedings under section 469 of the Companies Act, has power to grant a monetary order against a company being wound up.
• Whether the Court of Appeal, in an appeal against a winding up order, has power under section 69 of the Courts of Judicature Act 1964 to record a consent order that is monetary in nature.
• Whether courts should act merely as a "rubber stamp" to record consent orders without first considering jurisdiction and power to do so.

• The Court held that neither the first limb nor the second limb ("any other order that the Court thinks fit") of section 469(1)(c) of the Companies Act empowers a winding up court to grant a monetary order, as compulsory winding up is a specific statutory procedure for cessation of insolvent companies' operations, not a debt collection mechanism.
• The Court held that since the High Court itself has no power to grant a monetary order in winding up proceedings, by parity of reasoning under section 69(1) of the Courts of Judicature Act 1964, the Court of Appeal likewise has no power to grant or record a monetary consent order in an appeal against a winding up order.
• The Court further held that section 69(4) of the Courts of Judicature Act 1964 does not assist, as a monetary order or monetary consent order is not one "which ought to have been given" nor "required" in such an appeal; accordingly, the Court declined to record the consent order and directed the appeal to proceed on its merits.