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BA-28NCC-556-09/2024 Kand. 24/11/2025 15:01:50 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN [BAHAGIAN KOMERSIAL] PETISYEN PENGGULUNGAN SYARIKAT NO.: BA-28NCC-556- 09/2024 Dalam Perkara mengenai ALPHACAPITAL (M) BERHAD [No. Syarikat: 1426936]; Dan Dalam Perkara Seksyen 346 (2)(e), Seksyen 465 (1)(f) dan Seksyen 465 (1)(h), Akta Syarikat 2016. ANTARA MOHD LASIM BIN MAHMUD (NO. K/P: 570102-01-5399) MOHAMAD FUARD BIN CHE IBRAHIM (NO. K/P: 660401-03-6121) AFIFAH HANIE AHMAD (NO. K/P: 860215-23-5430) SITI SAFIAH BINT] MOHAMED IZHAM (NO. K/P: 011106-10-1170) SURAYA BINT! AHMAD TERMIZI (NO. K/P: 610918-10-6844) ..PEMPETISYEN-PEMPETISYEN DAN ALPHACAPITAL (M) BERHAD (NO. SYARIKAT: 1426936-U) .~RESPONDEN Heard together with DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN [BAHAGIAN KOMERSIAL] PETISYEN PENGGULUNGAN SYARIKAT NO.: BA-28NCC-557- 09/2024 Dalam Perkara mengenai ALPHACAPITAL (M) BERHAD [No. Syarikat: 1426936]; Dan Dalam Perkara Seksyen 346 (2)(e), Seksyen 465 (1)(f) dan Seksyen 465 (1)(h), Akta Syarikat 2016. ANTARA NORINAH BINT! MOHAMED & 32 ORS. DAN ALPHACAPITAL (M) BERHAD (NO. SYARIKAT: 1426936-U) .-RESPONDEN GROUNDS OF DECISION (Winding-up Petition) Introduction 1. This is my decision on two petitions seeking to wind up Alphacapital (M) Berhad (“the Company” or “the Respondent”) under sections 346(2)(e), 465(1)(f) and 465(1)(h) of the Companies Act 2016 ("CA 2016”). Both petitions were heard together as they involve the same facts and issues. My decision in Petition 556 therefore applies equally to Petition 557. 2. The Petitioners are investors who subscribed to Redeemable Preference Shares Islamic (“RPS-i”) issued by the Respondent pursuant to Subscription Agreements and an Information Memorandum dated 10 October 2021. They allege that the Respondent has failed to pay monthly returns and to redeem the RPS-i upon maturity, and that its conduct warrants winding up on the grounds of insolvency and that it is just and equitable to do so. 3. The Respondent opposes the petition. It contends that no debt presently exists; that the alleged obligations are conditional upon distributable profits and unfulfilled contractual preconditions; that three Petitioners were ineligible to participate as “Sophisticated Investors” within the meaning of the Capital Markets and Services Act 2007 (‘CMSA’); and that this petition constitutes an abuse of process to exert pressure for repayment. Background Facts 4. The Petitioners each subscribed for varying amounts of RPS-i under the Company’s structured investment arrangement. The terms entitled the holders to an expected preferential profit “based on profits declared by the Company” and permitted redemption upon the expiry of a fixed tenure, extendable by up to twelve months at the Company's discretion. 5. The Petitioners claim that the Respondent promised monthly returns but ceased making payments in 2023 and failed to redeem the shares at maturity. They issued several demands which went unanswered. 6. The Respondent admits that payments were suspended but explains that the Company incurred significant operational losses of some RM 12.5 million by December 2023. In those circumstances, it had no distributable profits from which dividends could lawfully be declared. It further contends that certain Petitioners had not met the minimum RM 250,000 investment threshold required of “Sophisticated Investors” but nevertheless signed declarations affirming eligibility. 7. Against that background the Petitioners filed this petition, relying on sections 346(2)(e), 465(1)(f) and 465(1)(h) of the CA 2016. The Petitioners’ Case 8. The Petitioners submit that the Respondent's failure to pay the promised monthly returns and to redeem the RPS-i evidences its inability to pay debts within the meaning of section 465(1)(f). They also allege mismanagement, lack of transparency, and loss of confidence in the directors, rendering it just and equitable under section 465(1)(h) to wind up the Company. They maintain that their entitlement to the contractual returns and redemption sums is clear and unconditional, and that the Respondent's invocation of financial losses or investor eligibility is a mere afterthought. The Respondent’s Case 10. 11, The Respondent contends that the petition is legally unsustainable because: (a) The RPS-i returns are contingent upon distributable profits and cannot be treated as debts; (b) The Petitioners have not shown that the contractual maturity dates for redemption have lapsed; (c) Several Petitioners were ineligible under the CMSA to invest as “Sophisticated Investors’, having misrepresented their status; and (d) The petition is a disguised attempt to recover an investment and constitutes an abuse of the winding-up jurisdiction. The Respondent relies on the principle, reaffirmed in Vizione Construction Sdn Bhd v Pembinaan Gerak Yakin Sdn Bhd [2024] MLJU 1513 and Anjakan Rezeki Sdn Bhd v UI Lead Sdn Bhd [2018] MLJU 2188, that a winding-up petition is not a legitimate substitute for a civil action where the debt is bona fide disputed. 12. It further cites Teoh Teik Lin v Rockwills Trustee Bhd [2025] MLJU 186, applying L’Estrange v F Graucob Ltd, to argue that the Petitioners are bound by the declarations they signed as Sophisticated Investors. Finally, it invokes Conweld Engineering Sdn Bhd v Goh Swee Boh @ Goh Swee Hoe [2006] 4 CLUJ 253, where the Court of Appeal held that a winding-up petition filed for a collateral purpose amount to an abuse of process. Issues for Determination 13. From the competing positions, the following issues arise: (i) | Whether there exists an undisputed, presently due debt entitling the Petitioners to invoke section 465(1)(f); (ii) Whether the Petitioners’ alleged rights to returns and redemption have crystallised; (iii) Whether there is oppression or other conduct rendering it just and equitable to wind up the Company; and {iv) Whether the petition amounts to an abuse of process. Analysis and Findings Existence of Debt Under Section 465(1)(A 14. Clause 1.1 of the Subscription Agreement provides that each preference share “shall be paid an expected preferential profit ... based on profits declared by the Company.” This language is clear: the entitlement to profit is conditional upon declaration of distributable profits. 15. The Respondent's uncontroverted evidence shows cumulative losses exceeding RM 12.5 million by December 2023. In such circumstances no distributable profits existed, and no dividends could lawfully be declared. The Petitioners have produced no contrary financial evidence. 16. It follows that no debt has arisen. The alleged “monthly returns” are expectations, not debts due. As the Court of Appeal observed in Vizione Construction and Anjakan Rezeki, a winding-up petition must not be used to recover a disputed debt. The proper forum is a civil action in contract. Maturity and Crystallisation of Redemption Rights 17. The redemption clause allows the Company to redeem the RPS-i upon maturity, extendable by up to twelve months. The Petitioners have not shown that these redemption periods had expired when the petition was filed. Without proof of maturity, there is no default and hence no debt. 18. This dispute turns on the construction and performance of contractual terms, again a matter for trial, not summary determination in insolvency proceedings. Oppression or “Just and Equitable” Grounds 19. Section 465(1)(h) is generally invoked where there is a deadlock, loss of substratum, or exclusion of shareholders with a legitimate expectation of participation in management. 20. Here, the Petitioners are holders of non-voting RPS-i shares. They are passive investors with no managerial or governance rights. Their dissatisfaction stems solely from non-payment of returns. No evidence has been adduced of deadlock, exclusion, or misconduct by directors. 21. The loss of confidence in management, however genuine, does not of itself justify a winding-up order under section 465(1)(h). Eligibility as Sophisticated Investors 22. The Respondent has shown that three Petitioners did not meet the RM 250,000 minimum investment threshold. Each nonetheless signed declarations of eligibility. Applying Teoh Teik Lin v Rockwills Trustee Bhd and L’Estrange v F Graucob Ltd, parties are bound by documents they sign absent fraud or misrepresentation. No such allegation has been made. 23. While the Company may arguably have waived compliance by accepting their funds, this raises factual and equitable questions unsuitable for summary disposal in winding-up proceedings. The existence of these triable issues alone precludes a finding of an undisputed debt. Abuse of Process 24. The evidence strongly suggests that the Petitioners’ true objective is to compel repayment of their investments. In Conweld Engineering Sdn Bhd v Goh Swee Boh @ Goh Swee Hoe [2006] 4 CLJ 253, the Court of Appeal held that a winding-up petition filed to achieve a collateral purpose (there, a share buy-out) was an abuse of process. The same principle applies here. 25. It seems to me that this petition is not a bona fide invocation of insolvency jurisdiction but a device to exert commercial pressure. The winding-up machinery of the Court must not be employed for such ends. Conclusion and Orders 26. Having considered all the evidence and submissions, | find no clear, presently due, and undisputed debt has been established. The Petitioners’ alleged rights under the RPS-i remain contingent and disputed. No oppression, mismanagement, or breakdown of substratum has been proven. The petition amounts to an abuse of the winding-up process. 27. Accordingly, the petition is dismissed. Costs are awarded to the Respondent. For the avoidance of doubt, the Petitioners are at liberty to pursue any contractual or regfitution claims through the appropriate civjproceedings. Dated: 7" NOVEMBER 2025 ~ RAJA R INTI RAJA TORAN Judicial Commissioner Muamalat and Insolvency Shah Alam 9 COUNSEL Solicitor for the Appellant Solicitor for the Respondent 10 Tetuan Hisyam Yunus & Co Unit 18-03A-01, Binjai Premium Soho No.2, Lorong Binjai, WP Kuala Lumpur Email : hisyamyunus @hycogroups.com Phone No : 03-7733414/013-4923562 1. Hisyam Yunus Tetuan Ganesh Azhar & Associates Unit A-31-11, Menara UOA Bangsar No.5 Jalan Bangsar Utama 1 59100 Kuala Lumpur Phone No : 03-2202 1554 1. Ganesh Magenthiran & Alissa Sabri