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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 28NCC-536-06/2013
LIM SZE KET
v.
PERFECT STONE SDN. BHD.
GROUNDS OF JUDGMENT
The Salient Facts
The Contributory and the Petitioner were husband and wife.
Together they established the Respondent, a company supplying
marbles to housing developers, etc. When the Respondent was
established in 2012, the Directors were the Petitioner and the
mother of the Contributory each holding 1 share valued at RM2.00.
At the time, the Contributory and the Petitioner were still unmarried.
They married on 11.1.2006 and have 2 children.
After the marriage, the Petitioner held 30% shares and the
Contributory held 70% shares in the Respondent. The Contributory
is the Managing Director of the Respondent. Both the Petitioner
and the Contributory were paid salaries RM8,127.00 each.
Unfortunately the couple had marital problems eventually resulting
in a divorce.
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The Petitioner (the wife) then filed the Petition to wind-up the
Respondent. She also filed Enclosure 4 for the following orders:“1.
Upon an undertaking from the Petitioner through her solicitors
to abide by any Order that the Court or the Judge may make
as to damages in case the Court or a judge should hereafter
be of the opinion that the Respondent shall sustained any loss
or damages by reason of the order to be make herein which
the Petitioners ought to pay;
1.1. That HENG JI KENG (NRIC No. 471010-01-5435)
[Approval
JOSEPH
No.:
578/05/10(J/PH)]
MONTEIRO
(NRIC
and
MICHAEL
NO.:390207-10-5405)
[Approval No.: 828/07/10(J/PH)] be and are hereby
appointed as the Provisional Liquidators of Perfect
Stone Sdn. Bhd. (Company No. 593743-D) (“the
Respondent”) pending the disposal of the Petition or
until further Order;
1.2. That the duties to be performed by Provisional
Liquidators appointed pursuant to paragraph 1.1 of this
Order are as provided under the Companies Act 1965
and Companies (Winding-Up) Rules 1972 and/or all
relevant laws and statutes, including but not limited to
all the powers of a Liquidators under Section 236(1)
(a) to (e) and Section 236(2)(a) to (j) of the Companies
Act 1965 which inter alia, as set out in the Schedule
attached hereto and marked as “A”;
1.3. The nature and description of the property of which the
Provisional Liquidators are to take possession is as
follows:-
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1.3.1 The monies in the bank account, as at to date,
there are 4 bank accounts under the name of the
Respondent, namely:a)
Ambank (M) Berhad, 088-201-2000-127;
b)
Ambank (M) Berhad, 088-202-2009-555;
c)
Malayan Banking Berhad, 5141-1443-6939;
and
d)
RHB Bank Berhad, 21217000038289.
1.3.2 The monies of RM425,000.00 payable by HAB
Construction
Sdn
Bhd
and
RM250,000.00
payable by Bluebros E & C Sdn Bhd to PHANG
YEONG HAU (NRIC No.:780309-08-5859); and
1.3.3 All the property and things in action to which the
Respondent is or appears to be entitled, whether
such property and things in action are owned
by the Respondent solely or jointly or in common
with any person or persons howsoever or in the
name of nominees, companies, partnership, sole
proprietorships
or
businesses
controlled
or
directed by the Respondent, including but not
limited to land and building, furniture, fittings and
fixtures, office equipment, computers, motor
vehicles, renovations, signboard, leased assets,
trade debtors, staff advance, other debtors,
depositors and pre-payment, cash and bank
balances.
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2.
No disposition of the Respondent’s assets by or with authority
of the Provisional Liquidators in carrying out his duties and
exercise his powers under the Order to be made herein shall
be avoided by virtue of the provisions of Section 223 of the
Companies Act 1965;
3.
That the costs of this application be taxed forthwith on a
solicitor and client basis and be paid out of the assets of
the Respondent to the Petitioner and that such payments is
hereby validated pursuant to Section 223 of the Companies
Act 1965;
4.
The remuneration of the Provisional Liquidators shall be on
a time-cost basis or as provided under the Companies
(Winding-Up) Rules 1972 and be paid out of the assets of the
Respondent;
5.
The Provisional Liquidators to be given liberty to apply to
the Court for such further orders and directions as may be
appropriate or necessary in the circumstances of the case;
and
6.
Further and other relief of which this Honourable Court deems
fit and just in the circumstances.”.
The Grounds
(a)
That there is a good prima facie case to support this
application;
(b)
The assets of the Respondent are in jeopardy; and
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(c)
The appointment of the Provisional Liquidators are necessary
to preserve and protect the assets of the Respondent from
being dissipated pending the Hearing and disposal of the
Winding Up Proceeding.
After hearing the submissions, Enclosure 4 was allowed. The
Contributory (the husband) then filed Enclosure 15 for the following
orders:“1)
Leave pursuant to Rule 193 Companies (Winding-Up) Rules
1972 and the inherent jurisdiction of the Court to use the
Affidavit in Opposition filed on 30.7.2013;
2)
To set aside/stay the Ex-parte Order dated 29.7.2013
appointing a Liquidator pending the disposal of the Winding
Up Petition;
3)
Cost; and
4)
Any other relief.”.
The Grounds
(a)
The delay in the filing of the Affidavit of Opposition will not
prejudice the Petitioner.
(b)
Misrepresentation by the Petitioner by filing the Winding Up
Petition.
(c)
The Petitioner utilized funds and assets of the company and
had issued cheques up to RM205,000.00 into her personal
account.
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(d)
Oppressive and unfair to Phang Yeong Hau, the Contributory,
if he is not given the opportunity to object to the Petition.
Enclosure 15 was considered and after hearing the arguments and
considering the Submissions as well as authorities of both parties,
I allowed prayer 2 of Enclosure 15 with cost. The Hearing of the
Winding up Petition was then fixed on 25.10.2013.
Decision
It is trite law that damages is an exercise of judicial discretion
and must be by reference, guidance and application of established
judicial principles having regard to all the facts and evidence
adduced before the officer or the judge who undertakes the
assessment. The burden of proving damages is always on the
parties claiming the said damages. In the case of Tan Geok Khoon
& Gerard Francis Robless v. Paya Terubong Estate Sdn. Bhd.
[1987] 1 LNS 79 Justice Edgar Joseph Jr. (as he was then) said:
“ This brings to my mind the famous words of Lord Goddard in BonhamCarter v. Hyde Park Hotel [1948] 64 TLR 177:
“Plaintiffs must understand that if they bring actions for damages it is
for them to prove their damage; it is not enough to write down the
particulars, and, so to speak, throw them at the head of the Court,
saying: ‘This is what I have lost, I ask you to give me these damages.
They have to prove it.”.
In Fraser & Neave Ltd v. Yeo Hiap Seng Ltd [1989] 1 CLJ 275;
[1989] 2 CLJ (Rep) 809 Wee Chong Jin CJ said:
“ The fact that an inquiry/assessment of damages has been directed
pursuant to an undertaking in an injunction does not raise a
presumption that damage has in fact been suffered. The purpose of
any such inquiry is to establish: (1) the existence; and (2) the extent of
any damage. If the party concerned has an arguable case for claiming
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damages, the Court would, as a matter of justice, make an order for an
inquiry to enable that party to pursue it. The inquiry would of course be
at that party's risk as to costs (see McDonald’s Hamburgers Ltd. v.
Burgerking (UK) Ltd. [1987] FSR 112, a decision of the England Court
of Appeal).
The onus of proof lies on the party who asserts that it has sustained
damage, and it must be proved that the damage was caused by
the injunction (see Air Express Ltd. v. Ansett Transport Industries
(Operations) Pty Ltd. [1981] 146 CLR 249, a decision of the High Court
of Australia).”.
The Court of Appeal in John v. Dharmaratnam [1961] 1 LNS 35;
[1962] MLJ 187 as well as in Popular Industries Ltd v. Eastern
Garment Manufacturing Sdn. Bhd. [1990] 1 CLJ 133; [1989] 3
MLJ 360, (at p 367) said,
“ It is axiomatic that a plaintiff seeking substantial damages has the
burden of proving both the fact and the amount of damages before he
can recover. If he proves neither, the action will fail or he may be
awarded only nominal damages upon proof of the contravention of a
right. Thus nominal damages may be awarded in all cases of breach of
contract (see Marzetti v. Williams 109 ER 842). And, where damage is
shown but its amount is not proved sufficiently or at all, the court will
usually decree nominal damages.”.
It was held by the Federal Court in Tan Sri Khoo Teck Puat’s case
that,
“ The correct approach for the judge to have adopted when assessing
damages was to make an estimate as to what the chances were of a
particular thing happening, ie, whether they were more or less even. In
this case, with the increased cost of construction, not forgetting that
land is limited and is always deemed to have a special value, the
chances of the price of houses increasing was part of the ordinary
course of things and more than even. Such an approach would have
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supported the profit projections of the second appellant' expert
witness.”.
The prayer in Enclosure 4 had stated that the Court would only
allow damages if the judge is of opinion that the Respondent
sustained any loss or damages.
Applying the principles in the cases mentioned above, I am of
the considered view that the Respondent did not suffer any loss
or damages. Furthermore the Respondent failed to adduce any
documentary evidence that it had suffered any such damages or
loss. The Winding up Petition was given an early hearing date.
sgd.
( HASNAH BINTI DATO’ MOHAMMED HASHIM )
Judge
High Court of Malaya
Kuala Lumpur.
30th May 2014
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Counsels:
For the Petitioner/Respondent:
Messrs. Chur & Associates
- J.Y. Pua
- C.K. Ng
For the Respondent/Appellant:
Messrs. The Chambers of Lim Yeeu Ren
-
Henry Quah Thiam Chai