Archer Daniels Midland Co. … Pempetisyen v Tth Global (M) Sdn Bhd (BA-28NCC-33-01/2017)

On 31.5.2017, the court dismissed the Respondent’s application for striking out (Enclosure 14) of the Winding-Up Petition and allowed the Petitioner’s application to wind up the company.

The reasons for the dismissing the Respondent’s application are as follows : i. The Respondent submitted that the notice was not valid as the heading of the notice pursuant to Section 218(2) (a) of 2 the Companies Act 1965. The counsel submitted that there is no such section 218(2) (a) of the Companies Act 1965. This is a fundamental error and it goes to the root of the Petition, irregular and defective. This fundamental error cannot be cured under Rule 194 of the Winding-Up Rules because it is not a formal defect or irregular. ii. Secondly, the Petition was not properly served. The service of the Petition on the Chinese lady who is not the director, nor a company secretary or an officer of the Respondent is irregular. iii. Thirdly, there are various denomination of currencies stated in the 218 notice i.e. US dollar, British pound and RM. It was submitted that the British and US dollar is fluctuating nearly every week, therefore it is very confusing.

In reply to the first issue, counsel for the Petitioner submitted that the subject title of the 218 notice was all set out in capital letters. The full subject title referred to 218(2) (A) in the actual body of the 218 notice, it refers to Section 218(1)(e) read together with Section 218(2) (a) of the Companies Act, therefore the notice is clearly a valid 218 notice.

On the second issue, it was submitted that the service was proper, as it was served on the registered address of the Respondent. Once the Petition has been left at the registered office, this is already in compliance with Rules 25 of the Winding-Up Rules as the Petition can be left with any member, officer, member, servant of the company, or even there is no member, officer or servant, then by leaving a copy at the registered office. It was further 3 submitted that the requirement of Rule 33 of the Winding-Up Rule was complied with.

On the third issue, the different currencies were in order to show the exact currencies and amount as set out in the court judgment.

I agree with the petitioner counsel submission that the Respondent’s Striking-Out Application ought to have been made by way of summons. [Refer to Rule 7 of the Companies Winding-Up]

The Rule of Court, 2012 generally provides for applications to be made by way to Notice of Application, however the Rules specifically states the application relating to winding-up ought to be made either by notice of motion or summons. It is a well-known rule of construction that specific provision overrides general provisions Majlis Peguam & Anor v Tan Sri Dato’ Mohamed Yusoff bin Mohamed [1997] 2 MLJ 271 8. As such, I find that the Respondent’s Notice of Application to strike out the Winding-Up Petition is irregular. First Issue 9. I find the 218 Notice clearly state that is a “NOTICE PURSUANT TO SECTION 218 (2) (A) OF THE COMPANIES ACT 1965”. The entire heading of the 218 Notice was typed in capital letters and the relevant provision was also in capital letter. The last paragraph 4 of 218 Notice was referred clearly to in Section 218 (1) (e) read with Section 218 (2)(a) of the Companies Act 1965.

As such, I find the case of Ho Siew Choong & Ors v Everworth Sdn Bhd [Civil Appeal No. 28-3-2003] is distinguishable as in Hoo Siew Choong, the notice of demand was headed section 218 (e) and (i) of the Companies Act which are clearly non-existent. Further, the body of the notice of demand only referred to Section 218 of the Companies Act and failed to specifically state the correct sub-section.

In the circumstances, I find there is no defect to in the 218 Notice and thus, the 218 Notice is valid. Second Issue 12.

It is not disputed that the Respondent’s registered address at the time of service of the 218 Notice was at No.49-2, The Highway Centre Jalan 51/205 Petaling Jaya, Selangor. It is also not disputed that the 218 Notice was served on the Respondent at its registered office. Indeed, the Respondent acknowledge receipt of the 218 Notice. Therefore, I find that there can be no dispute that the 218 Notice was properly served on the Respondent in accordance with Section 218 (2) (a) of the Companies Act.

Based on the above reasons, I agreed with the Petitioner Counsel Submission that the 218 Notice was properly served on the 5 Respondent in accordance in Section 218 (2)(a) of the Companies Act. Third Issue 15. In the case of PT Anekapangan Dwitama v Far East Food Industries Sdn Bhd [1998] 7 MLJ 270, Justice Arifin Jaka (as His Lordship then was) held that the notice of demand was valid even though the amount demanded was in US Dollars. His Lordship opined that the company was not prejudiced or misled in any way as the company knew what was the amount due from and payable by him to the petition, and more so when the amount was for a liquidated sum though it is in US Dollars.

Similarly, the sums demanded by the Petitioner in the 218 Notice are based on the award as enforced by the Enforcement Order, as well as the March Orders, which the Respondent had knowledge of. In fact, the Petitioner had listed out clearly in the 218 Notice the amount due and owing and the basis for the amount.

I am of the view that the 218 Notice is not a confusing on the mere fact that the sums stated are in foreign currencies.

Therefore, the Respondent striking out application has no merits. Enclosure 1 19. The Respondent has failed to show any bona fide dispute of the debt. The Respondent has received the Notice and there was no respond to the demand notice from the Petitioner. The statutory demand demanded that the Respondent pay to the Petitioner the judgment sum within 21 days of the receipt of the statutory 6 demand. Thus, the Respondent is presumed to be unable to pay its debt.

As there is no affidavit of opposition filed by the Respondent, therefore there is no bona fide dispute of the debt due and owing by the Respondent to the Petitioner and that the Respondent is unable to pay its debt. I therefore allowed the Petitioner’s application that the Respondent be wound out. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA JUDGE (LJC) SHAH ALAM HIGH COURT