清盘师追溯公司在清盘前开出去的支票 [2010] MLJU 1102

当公司面临清盘时，清盘师的角色包括：
- 调查公司的事务和资产，其人员的行为以及债权人和第三方的债权
- 以最有利的方式回收和落实公司资产
- 根据公司法令的规定，裁定债权人的债权并确保公平分配公司资产。
一家公司被发现在清盘前曾开了支票给被告。清盘师因此采取诉讼，向被告追溯这支票。
Any disposal of property of the Company (which includes things in action) made after the commencement of the winding-up by the Court is void, unless validated by the Court: Section 223; Kimoyama Elektrik (M) Sdn. Bhd. v D & C Bank (1990) 2 CLJ (Rep) 253.
若债务人于清盘前，将资产偿还特定债权人，这种行为对其他债权人不公平，属于unfair/undue preference，法庭可宣布废除有关交易。It will therefore be unfair to allow one unsecured Creditor to have an undue preference over the others.
法庭批准了清盘师的申请，被告需要将有关数额归还公司。

详细的案情和判决，请阅读以下的英文版文章。

This action is filed by the Liquidator of Inai Offshore & Marine Engineering Sdn Bhd (In Liquidation). The Plaintiff was ordered to be wound-up by the High Court on 1.10.2009 pursuant to an order of the court in Winding-Up Petition No. D1-28-482-2009.
Prior to the hearing of the petition on the aforementioned date, the Directors of the Company allowed the remittance of RM1,091,810 from the Company’s account with Al-Rajhi Bank into the Defendant’s account with Maybank Berhad.
The remittance date, according to the record, is 18.8.2009, namely a date before the hearing of the Petition.
The Liquidator cites, inter alia, Section 233(1) by which a liquidator or a provisional liquidator, in the event of a winding-up, has “to take into his custody or under his control all property and things in action to which the company is or appears to be entitled.”
The Liquidator takes the position, and validly so, that in discharging his statutory duties he performs an administrative and a quasi-judicial function, and it is part of that quasi-judicial function for him to deliberate on the proof of debt. Creditors (in particular, unsecured Creditors) should submit their proof of debt in the usual way, and any aggrieved Creditor will be at liberty to appeal to court and seek a judicial determination. Section 279 and Section 291 of the Companies Act are marshaled in support. Further, hand in hand with his statutory duties, the Liquidator is expected to exercise a high standard of care.
The record discloses a total of six Creditors have filed their proof of debt for a total sum of RM 30,964,260.15. The Defendant Company is not one of them, and there is no order obtained from the court to validate the payment of RM1,091,810.00 received by it.
At the heart of this suit is the meaning and effect of Section 223:

“Avoidance of dispositions of property, etc. Any disposition of the property of the company including things in action and any transfer of shares or alteration in the status of the members of the company made after the commencement of the winding-up by the Court shall unless the Court otherwise orders be void.”

After hearing the submissions of the parties, I allowed Enclosure 1, Prayer (1), (2). Costs to be paid from assets of the Company. Further Prayer under Prayer (3) that interest be charged at the statutory rate of 8% per annum on sum of RM1,091,810.00 from the date of this Order until full payment.

Grounds:

It is clear from the authorities:

(a) A compulsory Winding-Up proceeding is deemed to commence at the time when the Winding-Up Petition is presented: Section 219(2); Kredin Sdn. Bhd. v D & C Bank [1995]3 MLJ 304.

(b) Any disposal of property of the Company (which includes things in action) made after the commencement of the winding-up by the Court is void, unless validated by the Court: Section 223; Kimoyama Elektrik (M) Sdn. Bhd. v D & C Bank (1990) 2 CLJ (Rep) 253.

(c) Monies in a banking account is property (BSN Commercial Bank (M) Bhd. v River View Properties Sdn. Bhd. [1996] 1 ML J 872).

(d) An unsecured credit cannot be given a preference at the expense of other unsecured Creditors but must instead allow the Liquidator to marshall the assets of the Company for distribution according to the statutory framework.

(e) Actual knowledge of the winding-up proceedings is not a necessary ingredient of liability, since a Creditor will be deemed to have notice of the Winding-Up Petition once it is advertised. (Oriental Enterprise Sdn. Bhd. v Sri Hartamas Contractors Sdn. Bhd. (in Liquidation) [2002] 4 AMR 3843).

On the facts here, the Petition was presented on 29.6.2009 and heard on 1.10.2009, but the payment from the Al Rajhi Bank account was made on 18.8.2009 during the “interim period.” The Petition was advertised on 13.8.2009, 14.8.2009, 19.8.2009, 20.8.2009 and 27.8.2009. The transfer was affected after the first two advertisements were done, and therefore the Defendant must be deemed to have implied notice of the Winding-Up Petition.
The proposition stated in Mosbert Bhd. (in Liquidation) v Stella D Cruz [1985] 2 MLJ 446 is particularly relevant:

“It cannot be disputed that the primary object of Winding-Up is the collection and distribution of the assets of the company pari passu amongst unsecured Creditors after payment of preferential debts.”

It will therefore be unfair to allow one unsecured Creditor to have an undue preference over the others.
I considered the Defendant’s arguments which are:

(a) The monies were not paid from the Plaintiffs property; and

(b) The Plaintiff’s Directors should be held personally liable, not the Defendant.

The first argument rests on the fact that the payment was remitted from the Plaintiff’s current account which at that time showed a closing balance of minus RM 2,088,026.87. Hence, it is argued the monies are the property of Al Rajhi’s Bank, not the Plaintiffs. This however was a payment allowed under a facility granted in favour of the Plaintiff, and to that extent it should be regarded as a chose in action belonging to the Plaintiff.
The second argument is premised on the decision of an old Chancery Division case of Re Neath Harbour Smelting and Rolling Works (1887) Times Law Reports, Vol. LVI, 727. This English case referred to Sections 153 and 165 of the old Companies Act 1862, which have some, though not complete, similarities with the present Malaysian sections 223 and 277(5) and 305(1).
However, the old English provisions are not completely in pari materia with the mentioned Malaysian provisions in our Companies Act. Unlike the old Section 153 of the English Companies Act 1862, Section 223 of the Malaysian Act is couched in imperative terms with the effect that any disposition of property or chose in action after the commencement of winding-up is void unless otherwise ordered by the court.
It is necessary to emphasise that on the facts of this application the Defendant, as recipient of the payment, has not seen it necessary to apply to this Court for an order validating the payment. Section 223 of the Act allows the court to validate such payment in a proper case. To quote the pertinent passage in Haisburv’s Laws of Malaysia at paragraph 110.227:

“Every disposition of the Company’s property, including things connection, and any transfer of shares, or alteration in the status the members of the Company, made after the commencement of the winding-up is void unless the court otherwise orders. In a proper case, the court may order otherwise while the Petition is still pending and before an order has been made on it. In the exercise of its discretion, the court will do its best to ensure that the interests of the unsecured Creditors will not be prejudiced, and will validate transactions entered into in good faith in the ordinary course of trade and completed before the date of the winding-up order… Where, in the case of the solvent Company, evidence is place before the court that the Directors considered a particular disposition is necessary or expedient in the interests of the Company, for reasons which the court considers an intelligent and honest person could reasonably hold, the court will sanction the disposition even if the contributory opposes it, unless the contributory adduces compelling evidence proving that the disposition is likely to injure the Company. The court will deal with each case on its own facts in particular circumstances, special regard being had to whether the disposition has reduced assets available in the winding-up, and to the question of the good faith and honest intention of the parties concerned…”.

Since no application has been made to validate the payment from the earlier stated banking account to the Defendant, it is in my opinion only just and fair that the sum paid to the Defendant be refunded to the Company with interest calculated from the date of this Court’s order until full payment.

Source: INAI Offshore & Marine Engineering Sdn Bhd v Sri HuaHeng Packing Services Sdn Bhd [2010] MLJU 1102. High Court Kuala Lumpur. Mohamad Arif bin Md Yusof J.

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