KONSESI KOTA PERMATAMAS SDN BHD v 1. ) TECH ART VISION SDN. BHD. 2. ) TECH ART SDN. BHD. (DALAM PENGGULUNGAN)

Case Significance

Illustrates that under section 486(2) of the Companies Act 2016 a contributory may be granted leave, including nunc pro tunc, to proceed with arbitration and enforcement in the name of a wound-up company where the liquidator declines to act.

This High Court (Commercial Division) decision concerns an application for leave under section 486(2) of the Companies Act 2016 for a sole contributory to proceed, in the name of a wound-up company, with arbitration proceedings and the enforcement of a final award obtained in that arbitration. The second respondent company had been wound up, and its sole contributory, the first respondent, wished to pursue an arbitration against the applicant and to enforce a final award that had been handed down in the wound-up company's favour. Because the liquidator declined to act for the company, the first respondent sought the court's leave, including on a nunc pro tunc basis, to prosecute the arbitration and the enforcement in the company's name. The applicant, which was the party embroiled in the underlying dispute with the company and had been on the losing side of the final award, resisted, questioning whether the pre-conditions to a grant of leave under section 486(2) were satisfied, whether nunc pro tunc leave could validly be granted, and whether it had suffered a breach of natural justice given that an earlier leave application had been filed ex parte. The court addressed the statutory pre-conditions for leave, the effect of the liquidator's refusal to act, and the fairness concerns arising from the ex parte procedure, and granted leave to the first respondent to proceed in the name of the second respondent with the arbitration and the enforcement of the final award. The judgment illustrates the operation of section 486(2) of the Companies Act 2016 where a contributory must step in to pursue litigation for a wound-up company whose liquidator will not act, and the treatment of nunc pro tunc leave and natural-justice objections. The court reasoned that the leave requirement exists to protect the orderly administration of a winding up, and that where the liquidator declines to pursue a beneficial claim a contributory with a genuine interest in realising the company's award should not be left without recourse; the ex parte history did not, on the facts, deprive the applicant of a fair opportunity to be heard on the leave question.