EMRAIL Sdn Bhd

On the court record

A company whose litigation centres on the judicial-management moratorium under section 410(c) of the Companies Act 2016 and on setting aside and enforcing adjudication decisions under CIPAA 2012.

Emrail Sdn Bhd appears in the corpus in commercial and insolvency litigation dominated by two themes: the protection afforded by a judicial-management moratorium under the Companies Act 2016, and construction-payment adjudication under CIPAA. It appears as respondent, applicant, defendant and plaintiff across the High Court.

The judicial-management strand is prominent. In one matter the court considered an application for leave nunc pro tunc under section 410(c) of the Companies Act 2016 — whether the court has jurisdiction to grant retrospective leave to commence or continue proceedings against a company in judicial management, and whether intervention in the judicial-management proceedings is a prerequisite to seeking leave. A related matter concerned the effect of the statutory moratorium under section 410(c) on a winding-up petition presented after a judicial-management application, and whether the High Court retained jurisdiction to hear interlocutory stay and striking-out applications within the winding-up proceedings.

The construction strand turns on adjudication under the Construction Industry Payment and Adjudication Act 2012. Two connected originating summonses arose from an adjudication decision, one party applying to set the decision aside and the other applying to enforce it under section 28. The company was also involved in injunction litigation — an appeal against the discharge of an ex parte injunction where the court found the originating summons had been commenced in breach of the applicable requirements — and in more conventional contract disputes, including a summary judgment raising triable issues over whether inaction amounted to acceptance of a proposal to vary an agreement under sections 7, 57(2) and 63 of the Contracts Act 1950, and an application to amend a defence to add a counterclaim said to be designed to nullify an earlier injunction order. The judicial-management and construction strands are connected in substance: when a company facing payment claims seeks the shelter of a statutory moratorium, the courts must reconcile the protective purpose of judicial management with the summary, cash-flow-driven enforcement that CIPAA was designed to deliver — which is why questions of leave, jurisdiction and the timing of applications recur throughout the company's litigation.