Chapter 17 - Winding Up Petition

Question 1

WINDING UP PETITION

Overview

Answer 1

1) Who can file petition
2) When petition can be filed
3) Affidavit
4) Advertisement
5) Certificate by Registrar
6) Notice of intention to appear
7) Affidavit in opposition
8) Notice & service of winding up order

Question 2

WINDING UP PETITION

Who can file - authority to present petition

Answer 2

S.464(1), inter alia:
- the company;
- any creditor, including a contingent or prospective creditor of the company;
- the liquidator;
- the Minister on the ground specified in
paragraph 465(1)(d) or (l);
- etc.

Question 3

WINDING UP PETITION

When can be filed - the law

Answer 3

S.466(2):

• A petition to wind up a company shall be filed in the Court within six months from the expiry date of the notice of demand issued under paragraph (1)(a).
• Expiry of notice: 21 days;
• Expiry of notice during COVID: 6 months;
• So petition can be filed 6 months after the 6 months expiry of notice, i.e. 12 months after issuance of notice.

r.22 CWUR:

Every petition for the winding-up of a company by the Court may be in Form 2 or 3 with such variations as
circumstances may require.

r.23 CWUR:

• (1) A petition shall be presented at the office of the Registrar who shall appoint the time and place at which
  the petition is to be heard.
• (2) Notice of the time and place appointed for hearing the petition shall be written on the petition and sealed
  copies thereof, and the Registrar may at any time before the petition is advertised, alter the time appointed
  and fix another time.

Question 4

WINDING UP PETITION

When can be filed - application - presentation date

HC, 2017

Answer 4

KTS News Sdn Bhd v See Hua Realty Berhad:

• the Respondent submitted that this Petition was not presented because there was no presentation date & it submitted that the Petition was therefore void.
• Held: This Petition is dated 4.5.2017.
• Although the presentation date is not stated in the Petition, it was filed vide E-Filing through the court’s E-filing system.
• It was digitally signed on 4.5.2017 by the Deputy Registrar (DR) of the High Court and ordered that the “Petition shall be heard at the High Court, Kuching on the 5th day of June, 2017 at 9.00 am”.
• reading r.23(1), the Petition was presented when it was filed and signed by the DR, which was on 4.5.2017. This would be the presentation date.

Question 5

WINDING UP PETITION

Affidavit - the law

Answer 5

r.26 CWUR:

• Every petition for the winding-up of a company by the Court shall be verified by an affidavit referring thereto.
• The affidavit in Form 7 shall be made by the petitioner or by one of the petitioners, if more than one, or, in
  case the petition is presented by a corporation, by some director, secretary or other principal officer thereof;
• Affidavit shall be sworn after and filed within 4 days after the the petition is presented;
• The affidavit shall be prima facie evidence of the statements in the petition.

Question 6

WINDING UP PETITION

Affidavit - application:

affidavit sworn on the SAME DAY petition was presented - CA, 1996

Answer 6

YPJE Consultancy Service Sdn Bhd v Heller Factoring (M) Sdn Bhd:

• the affidavit verifying the petition and the petition contained the date of 10 July 1995.
• Since the affidavit itself stated that the petition was attached to the affidavit, the affidavit must have been made after the petition was presented.
• OTF, there was no evidence that the affidavit had been sworn before the petition was presented.
• The principle on technicality in the system of justice is that:
• —– “Any system which by giving effect to the form and not to the substance defeats substantive rights and is defective to that extent. The ideal must always be a system that gives to every person what is his”

Question 7

WINDING UP PETITION

Affidavit - application:

affidavit sworn BEFORE petition was presented - CA, 2006

Answer 7

Pontian United Theatre Sdn Bhd v Southern Finance Berhad:

• Appellant contended that the affidavit was filed before the petition was presented, therefore it is void;
• Held: the petition was presented on the same day that the verifying affidavit was sworn, therefore it is not void.

Question 8

WINDING UP PETITION

Advertisement - the law - requirement to advertise

Answer 8

r.24 CWUR:

• Every petition shall be advertised in Form 4;
• This is to be done within 7 clear days or such longer time as the Court may direct
  before the hearing, as follows:
  – (a) once in the Gazette and twice at least in two local newspapers circulating in Malaysia or in such
  other newspapers as the Court may direct;
  – (b) the advertisement shall state the day on which the petition was presented and the name and
  address of the petitioner and of his solicitor and local agent (if any) and contain a note at the foot thereof.

Question 9

WINDING UP PETITION

Advertisement - the law - failure to advertise

Answer 9

r. 24 CWUR - failure to advertise:
- If the petitioner or his solicitor does not within the time advertise the petition, the petition shall be cancelled by the Registrar and the petition shall be removed from the file unless the Judge or the Registrar shall otherwise direct.

Question 10

WINDING UP PETITION

Advertisement - application - importance of advertising

CA, 1998

Answer 10

Fairview School Bhd. v. Indrani a/p Rajaratnam (No. 1):

• In a s. 218 petition, the service is by advertisement.
• Consequently, all creditors and contributories are ‘parties’ who are deemed to be served and can participate in the proceedings.

Question 11

WINDING UP PETITION

Advertisement - application

FC, 2008

Answer 11

Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd:

• The advertisement was a mandatory requirement under the rules;
• The fact that the appellant had received payment of the debt was all the more reason for the need for the petition to be advertised.
• However, certain non compliances is a mere irregularity and is curable under r. 194(1) of the WUR.
• OTF, since the advertisement is mandatory, the fact that the advertisement was done earlier than the prescribed time would have no bearing on the defence raised by the appellant.
• Even if it was done seven clear days before the hearing date it would still have the same effect.

Question 12

WINDING UP PETITION

Certificate by Registrar - the law

Answer 12

r.32 CWUR:

(1) After a petition has been presented, the petitioner or his solicitor shall on a day to be appointed by the
Registrar attend before the Registrar and satisfy him that:

– (a) the petition has been duly gazetted and advertised;
– (b) the prescribed affidavit verifying the statements therein and the affidavit of service, if any, have
been duly filed;
– (c) the consent in writing of the approved liquidator nominated by the petitioner has been obtained
and filed;
– (d) the provisions of these Rules as to petitions have been duly complied with; and
– (e) a sum of three thousand ringgit has been deposited as required by subparagraph (1) (a) of rule
23A.

Question 13

WINDING UP PETITION

Certificate by Registrar - application

FC, 2011

Answer 13

Blue Valley Plantation Bhd v Periasamy Kuppannan & Ors:

• If petitioner has not complied with all the procedural requirements as spelt out under r. 32, the Registrar will not issue a Registrar’s Certificate;
• No order save as to an order for the dismissal or adjournment of the petition shall be made on the petition of any petitioner at the hearing of the petition.

Question 14

WINDING UP PETITION

Notice of intention to appear - the law

Answer 14

r.28 CWUR:

• (1) Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his
  solicitor notice of his intention.
  – The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00 o’clock noon of the day previous to the day appointed for the hearing of the petition.
• (2) The notice may be in Form 8 with such variations as circumstances may require.
• (3) A person who has failed to comply with this rule shall not, without special leave of the Court, be allowed
  to appear on the hearing of the petition.

Question 15

WINDING UP PETITION

Notice of intention to appear - application - right to appear in the 2nd winding up petition against same company

CA, 2011

Answer 15

Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd:

• The learned judge in summarily dismissing the appellant (creditor) as a party in the KK petition is in violation of the purpose and intention of the Notice of Intention to Appear, that is provided for under r. 28.

Question 16

WINDING UP PETITION

Affidavit in opposition - the law

Answer 16

r.30 CWUR:

• (1) Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof
  served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the
  petition.
• (2) Any affidavit in reply to an affidavit filed in opposition to a petition (including a further affidavit in support of any of the facts alleged in the petition) shall be filed within three days of the date of service on the
  petitioner of the affidavit in opposition and a copy of the affidavit in reply shall be forthwith served on the
  opposing petitioner or his solicitor.

Question 17

WINDING UP PETITION

Affidavit in opposition - application

CA, 2018

Answer 17

Nadi Bumi Resources Sdn Bhd v UI Lead Sdn Bhd:

• HC Judge allowed the winding up petition against the respondent after refusing to admit the affidavit in reply which he considered to have being filed out of time & in contravention of r.30;
• The respondent appealed to the Court of Appeal & CA allowed the appeal;
• The order of winding up against the respondent was set aside.
• The Court of Appeal remitted back the petition for a rehearing to the High Court.

Question 18

WINDING UP PETITION

Affidavit in opposition - recent application

CA, 2010

Answer 18

Gulf Business Construction Sdn Bhd v Israq Holdings Bhd:

• Following r. 30(1) of the Rules, the impugned affidavit should have been filed and a copy thereof served on the petitioner or the petitioner’s solicitor at least seven days before the hearing date of the petition.
• This was not done.
• Effect must be given to the clear and unambiguous words employed in r. 30(1) of the Rules;
• Accordingly, the impugned affidavit could not be relied upon in opposing the petition to wind up the respondent.

Question 19

WINDING UP PETITION

Affidavit in reply to affidavit in opposition

FC, 2016

Answer 19

Kilo Asset Sdn Bhd v Hew Tai Hong:

Issue: whether a winding up court had discretion to accept an affidavit in reply to an affidavit in opposition to a petition which was filed more than three days of the date of service on the petitioner of the said affidavit in opposition, which was contrary to the provision under r. 30(2) of the WUR.

• Held:
• – under rr. 193 and 194 of the Winding-up Rules and ss. 221(2)(b) and 355 of the Companies Act 1965, the court is empowered to abridge or extend time for the purpose of curing non-compliance of provisions such as r. 30(2).
• • therefore, a court has the discretion to extend time or to cure the non-compliance of r. 30(2) of the Winding-up Rules.

Question 20

xx

Answer 20

xx

Question 21

WINDING UP PETITION

Notice & service of winding up order - the law

Answer 21

r.34 CWUR:

• (1) When an order is made for the winding-up of a company the petitioner shall forthwith inform the liquidator
  in Form 10 and within fourteen days of the pronouncement thereof -
  – (a) gazette and advertise a notice in Form 12 of the making of the order;
  – (b) serve upon the liquidator a copy of the order; and
  – (c) serve upon the Official Receiver and the Registrar of Companies a copy of the order.
• (2) The copy of the winding-up order required by section 226(2) to be served upon the secretary of the
  company may be served either personally or by prepaid letter addressed to the secretary at the registered
  office of the company (if any) or if there is no such registered office at its principal or last known place of
  business.
• (3) An order to wind up a company in Form 11 shall contain at the foot thereof a notice stating that it will be
  the duty of the person who is at the time secretary or chief officer of the company and of such of the persons
  who are liable to make out or concur in making out the company’s statement of affairs as the liquidator

Question 22

WINDING UP PETITION

Notice & service of winding up order - application

HC, 2017

Answer 22

Borhan Mohd Doya v Maha Persada Capital Sdn Bhd:

• Shahrin’s solicitors submitted that the Petitioner had failed to have the notice in Form 12 gazetted and advertised when the Respondent Company was ordered to be wound up by Court as required by Rule 34(1) of the CWR 1972.