Winstech Engineering Sdn Bhd v ESPL (M) SDN BHD  2 CLJ 1 (Federal Court)
For the Applicant: HL Lee; Messrs. HL Lee & Co
For the Respondent: Wong Hin Loong (Gan Chwee Yen with him); Messrs. Azman Davidson & Co.
Winstech Engineering Sdn Bhd (applicant in this case) has been wound up on 4th February 2010 and the applicant applied for leave to appeal to this court on 23rd May 2013. The applicant subsequently obtained sanction from the official receiver on 19th August 2013, which is after the filing of the application for leave to appeal to this court. The issue in this case is whether the sanction by the official receiver dated 19th August 2013 have a retrospective effect which validates the application for leave to appeal.
- The applicant is a corporation and hence cannot be a person under Bankruptcy Act. The Court held that specific law which has been enacted for the purpose of power or right relating to legal proceedings shall prevail over any other similar laws. The Court has put it right that Companies Act 1965 would be applicable in this appeal.
- The Court has affirmed that the sanction granted under section 236(2)(a) does not have a retrospective effect for an action or other legal proceedings. Thus, the application was invalid and void ab initio (referred to Hup Lee Coachbuilder’s case).
- The Court also held that doctrine of ratification has no application to ratify the issue of locus standi, as for this doctrine to apply, the ratification must be clear, i.e. the application for the sanction to be retrospective.
- By virtue of section 236(3) read together with section 226(3) of the Act, the Court has a discretion to grant leave nunc pro tunc, notwithstanding the fact that proceedings had already commenced.
- However, the Court has not grant a nunc pro leave to the applicant as the applicant has failed to apply the above provisions to enable itself to apply for a leave to appeal. As such, no prejudice or miscarriage of justice arose in this case.