Please enable JavaScript.

Coggle requires JavaScript to display documents.

Receiver & Liquidator - Coggle Diagram

- - - - Appointment of Receivers
        
        S.372 CA 2016 - person as approved liquidator under S.433 is qaualified to be receiver
        
        S.373 CA 2016 - corporate; undischarge bankrupt; and a morgagee of any property of the company is disqualified to be a receiver
        
        S.374 CA - appointment of receiver or receiver and manager
      - An independent person appointed to assume control of the company assets secured by the debentures in order to protect the creditors interest
    - - case: Re Manchester & Milford Railways Co
        
        Receiver, a person received rent or other income to pay outgoings but does not manage the property in sense of buying or selling any assets
        
        R&M, person who could buy and sell and carry on the trade
      - case:Re Victoria Steamboats Ltd
        
        receiver only authorised to egt in and realised the secured assets with no power to run the busness conversely the R&M has express power to do so
  - - - S.375(2)(b): a person appointed as receiver may act as R&M unless otherwised mentioned
      - S.376(2): receiver appointed by court over company may act as R&M unless otherwise stipulated
    - - Privately by debenturs holder
        
        s.374(a) CA - under any instrument confers on debentures holder or charge holder has the power to appoin receiver and receiver of manager
        s.374(b) CA - under any instrument create a charge in respect of property and undetaking of companyc onfers on the debenture or charge holder may appoint receiver and receiver and maanger.
        
        s.375 CA: appointment under instrument
        (1) R&M may appointed by instrument in writting signed by the debenture holder
        (2) powers to appointe R&M include power to appoint several R&M; additional R&M and repace R&M
      - By the court
        
        S.374(c) CA - R&M may be appointed by court
        
        S.376 CA
        (1) Ct may appoint R&M after notice given to the company upon the application made by the debentures holders, if the court satisfied
        -(a) company failed to pay debt due
        -(b) company breach terems of instrument propose to sell secured assts
        -(c) appointment is necessary to preseve the secured property
        (2) person appointed as receievr by court may be R&M as well
        
        S/378 CA - remenuration of R&M fixed by court may amened upon application
        
        case: Re London Press Hinge Co
        
        the court may appointe the receiver if it considers it is necessary to do so for the purpose to protect the interest of any person to whom the perosn or company may be liable in event the security is in jeopardy
        
        Lim Poh Choo v Absolute Ascend Sdn Bhd
        
        receiver appointed by court is not an agent nor trustee to the partiess but an officer to discharge the ct duty, thus can only flw ct but not obey to the direction of either party (neither company nor the debentures holders)
        
        purpose to preserved secured property which within the court jurisdiction
        
        appoinment made if the court satisfied the leagal or equirable rights deemed not protected withou other avaiable method, and the court shall satisfied the assets of company will be dispose off without the appointment of receivers.
        
        case: Parson v Sovereign Bank of Canada
        
        This case clarified the status of court appoitned receivers
        
        an officer put in to discharge the court duty; neither an agent for the debentures holders nor the company
        
        case: Beach Petroleum NL v Johnson
        
        the person seeking the remedy (debenture holder make the receiver application) must show that the company is liable for their interest and required protection otherwise a lesser remedy will be inedequately received by them.
        
        case: Dato Seri Dr Kok Mew Soon v Mustapha Mohamed
        
        appellant made an interlocutory injunction to restrain the R&M appointed by the company (3rd respondent)
        
        The said application is dismissed as the appellant failed to provide an accurate and satisfying reason that they would be bereft if the injunction were not granted.
        
        If there is dissatisfaction with the receiver due to misconduct, they may make an application under S.393 of CA 2016 to seek appropriate relief.
      - Different between Private & Court appointment
        
        case: Dufft v Super Centre Development Corp Ltd
        
        A privately appointed receiver served function to make effort to restore the financial prosperity of the company
        
        A court appointed receiver served as a company caretaker, not to profit the company but to preserve the assets of the company and preserve the company's potential for earning future profit
  - - - S.381 CA
      - S.382 CA 2016
      - case: Abu Bakar Rajudin v Syarikat Perumahan Negara Bhd
        
        Df was appointed as the R&M , and Df was sued in personal capacity for an outstanding payments
        
        CA held R&M as an agenet of debeloper doesnot have personal liability in signing the contracts but iinstead he is doing on behalf of the developer therefore the principla still remains liable as per S.186 of Contract Act
      - s.392 CA 2016: any contributory or creditor may apply to court to examine the conduct of the receiver, in any event the court may compel the receiver to pay
    - - S.380 CA
      - S.385 CA
      - S.387 CA
      - S.390 CA
      - S.391 CA
      - S.386 CA
      - case: Kimlin Houding Development Sdn Bhd v Bank Bumiputra (M) Bhd
        
        In this case, a company's land was charged under NLC, no debenture exist to create a floating charge nor appoint R&M with private power to sale. Subsequently the company was winding up
        
        in thie case, the court strictly uphold the pro-NLC- stance, give held on the ground since the land was governed under statutory law and therefore the R&M cannot bypass the statutory foreclosure process but rather shall obtain a formal order of court (judicial sale through public auction) to sell land; any private treaty is prohibited.
        
        Summary
        in simple, Kimlin would apply if the property is charged under NLC, and the chargor company has would up with no express provision appointing the R&M as the attorney of the chargor company.
        In this case, then the R&M could only sell land charged under NLC by an order of court. Neverthesless, in any even the debenture is invalid, the R&M will have no authority to do so.
      - case: Melantrans Sdn Bhd v Carah Enterprise Sdn Bhd
        
        In this case the court draw a line to distinguish land and other assets
        
        since other movable assets covered by the bank's debenture in this case were not governed by the restrictive NLC therefore the statutory foreclosure rules does not apply to them.
        
        thus, the R&M has absolute power under the debenture to sell those movable assets via private treaty to recover the bank's money.
        
        Summary
        Melatrnas apply where the chargor company is not wound up, and the validity appointment of R&M could sell the land through private treaty as an agenent of company with valid POA
      - case: Lim Eng Chuan Sdn Bhd v UMBC
        
        the assets is a land and was charged under NLC, and debenture existed with an express power to sale the land, subsequently the company wound up.
        
        This case has overturned Kim Lin Housing case.
        
        FC held that the debenture has independent, equitable property right. Hence, although the company has wound up, the R&M status as debenture holder survives, the R&M still empower to sell the land through private treaty to recover the debt without obtain a court order under NLC
        
        Summary
        Lim Eng Chuan would apply if the company is wound up but there is a valid debenture appointing the R&M who has been given a valid POA,. The receiver and manager could sell land charged under NLC by private treaty
      - S.368(1) - receivership and winding up (an amendement introduce in 2019)
        
        after the commencement of winding up of a company, tthe receiver may continue act as a receiver and all powers of a receiver; wherby R&M shall continue act as a receiver;R&M may continue exercise of R&M subject to consent was obtain from the liquidator or the consent of the court.
- - - - 5 yrs of full-time working experience in the field of insolvency
      - applicant shall has relevant experiencebut no longer practicing insolvency, not left practice more than 3 yrs from date of application
      - if practical insolvency is from outside of malaysia, the applicat must have practiced insolvency for 1 year in Malaysia
  - - - PART 1:
        
        Liquidator amy act without the need for court authorization in exercising any of statutory powers and duties vested on him
        
        transactions relating to the sale or otherwise of the movable or immovable property of the Company
        
        case KL Landmark Development Sdn Bhd v Jalex Sdn Bhd
        Follow Oren Venture case, say that the DGI has no power to issue a sanction to a 3rd party to bring an action on behalf of the wounding up company
        
        case: Ooi Kim Geik v Ng King Chong
        
        this case is contrave with Oren Venture. Saysthe sanction issued by the DGI is valid for a person to take an action on behalf of the winding up company
        
        case: Small Medium Enterprise Development Bank Malaysia Bhd v Oren Venture Sdn Bhd
        
        COA held theat the liquidator in this case being the official receiver could not delegate the liquidator's statutory power under Part 1 of Twelth
        
        Liquidator shall firstly decide whether refuse or defend any legal proceeding on behalf of the company
        
        If the Liquidator refuse, the company creditor may apply to court to order the compel of Liquidator, the creditor cannot make such application without the liquidator's refusal.
        
        commencing or defending any legal proceedings involving the Company, appoint a lawyer to assist him
        
        compromise any debts due to the company not exceeding RM10,000
        
        dealings with Bills of Exchange, borrowing on the security of assets, making payments in the ordinary course
        of business etc
      - PART 2:
        
        Liquidator need the approval of court or committee of inspection to (1) carry on the business of the company for more than 180 days; (2) make any compromise or arrangement with creditors, debts, calls, and liabilities.
  - - - case: NZ New Image Sdn Bhd v Loh Yok Liang
        
        Dispute over the purchase of shares of Amore Marketing Sdn Bhd
        
        App & Res has entered sale and purchase shares agreement, App vendor; Res buyer.
        
        App seek specific performance against Res subject to the agreement between the parties, in the meantime Amore Winding up.
        
        whether App still can sale the shares to Res? -- NO
        
        any transaction under S.223 of CA 1965 after the company wound up is void unless leave or sanction was obtained from the court.
      - case: Sime Diamond Leasing (Malaysia) Sdn bhd v JB Precision Moulding Industries Sdn Bhd
        
        App has prepaid deposit to the leasing of mechine, subsequently App wound up hence App liquidator seel return back of deposit
        
        FC held since no evidence the res was insolvent that time nor other party confer preference on app, hence deposit shall be returned.
      - any transaction/disposition of company assets after the company has wound up is void
    - - Liquidators may recover cash from the property of company sold undervalue or acquired at an over value to or from persons connected with the directors of the company 2 years before presentaiton winding up petition
      - S.197 CA 2016 - ""connected person"
      - case: Ann Joo Corporation Sdn Bhd v Chye Hup Seng Sdn Bhd
        
        there is a sell of company assets upon the company was wound up, and threfore an application made to validate the transaction
        
        the application dismissed by the HC.
        
        HC will only granted validation if (1) the transaction is beneficial to general bodies or creditors; (2) it would be just and fair allow the transaction done in good and honset intention