Concrewall Building System (IBS) SDN. BHD. v Z & Z BINA SDN. BHD. (WA-28NCC-367-04/2024)

The Petitioner filed this Petition to wind up the Respondent pursuant to Sections 465(1)(e) and (h) and 466 of the Companies Act 2016 (“CA 2016”).

This Petition is premised upon the Respondent’s failure to settle a summary judgment obtained by the Petitioner in the Sessions Court. The judgment is for the sum of RM193,090.83 including interests and costs.

The Petitioner vide its solicitor’s letter dated 28.11.2023 together with a Notice dated 28.11.2023 made a demand pursuant to Section 465 and/or 466 of the CA 2026 (“the Statutory Notice”). The said demand was served on the Respondent at its purported business address No. 15-1, Jalan 4/4C, Desa Melawati, 53100, Ulu Kelang, Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.

Although the Respondent in it’s affidavit in opposition raised a few grounds to oppose the Petition, during the last hearing date the Respondent’s counsel conceded that the only issue before this court 3 is the failure by the Petitioner to serve the Statutory Notice on the Registered address or the business address of the Respondent as stipulated by the CA 2016.

The Respondent avers that the Statutory Notice was addressed to No.14-1, Jalan 44C, Desa Melawati, 53100 Ulu Kelang, Kuala Lumpur but the letter enclosing the notice dated 28.11.2023 was in fact sent to No. 15-1, Jalan 4/4 Desa Melawati, 3100 Ulu Kelang, Kuala Lumpur which is not the business address of the Respondent.

The Petitioner submits that notwithstanding the alleged irregular service, the Respondent admitted that it did in fact receive the Statutory Notice.

The Petitioner refers to Paragraph 5 (b) of the Respondent’s Affidavit Opposing the Petition (Enclosure 6) where the Respondent averred:

I shall stop relating the facts here for a while and will aver that upon receipt of the Petitioner’s statutory notice issued pursuant to Sec. of the Companies Act 2016 the Respondent appointed the present solicitors who filed an application by way of Kuala Lumpur Hight court Saman Pemula No. WA-24NCC-686-12/2023 (Enc. 1) ex-parte application for an injunction (Enc.2) to injunct the petitioner from acting on the Winding Up Notice. [8] The Petitioner submits that the Respondent should be estopped form contesting the service of the Statutory Notice when the Respondent had admitted receiving the Statutory Notice and immediately appointed its solicitors who then proceeded to file an application for a Fortuna Injunction based on the alleged defective service of the s466 notice. The Respondent’s application for a Fortuna Injunction was dismissed by the High Court, and the issue of the alleged defective notice had been considered and dismissed by the court when it heard the application for a Fortuna Injunction. Thus, the issue is barred by Res Judicata. [9] The Petitioner cites the case of Ann Joo Metal Sdn Bhd v Pembenaan MY Chahaya Sdn Bhd [2000] 5 MLJ 708 where the High Court held: The question to be considered is whether the respondent has suffered substantial injustice which cannot be remedied by any order of the court. In this case before me, the respondent did in fact receive the petition and affidavit verifying the petition. Indeed, there is no denial that the respondent had received the notice of demand pursuant to s 218… Since the notice of demand and the petition together with the affidavit verifying the petition has in fact been served at the principal place of business as stated in the respondent’s own return under s 165, and admitted in the respondent’s third affidavit filed on 23 June 1999, and since it is nowhere pleaded that any of the documents were never received, there is no injustice occasioned and the cases PT Pelajaran Nasional Indonesia v Joo Seang & Co, Summit Co (M) Sdn Bhd v Nokko Products (M) Sdn Bhd are distinguishable on this ground. Other than raising the technicality, the respondent’s affidavits has not shown any injustice to have been occasioned. RESPONDENT’s SUBMISSION [10] In essence the Respondent submits that proper service of the Statutory Notice is a mandatory requirement of section 466 1(a) of the Companies Act 2016, because the words of section 466 states as follows:- s.466 (1) A company shall be deemed to be unable to pay its debts if:

the company is indebted in a sum exceeding the amount as may be prescribed by the Minister and a creditor by assignment or otherwise has served a notice of demand, by himself or his agent, requiring the company to pay the sum due by leaving he notice at the registered office of the company, and the company has for twenty-one days after the service of demand neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor; [11] The Respondent cites the case of Kertih Part Sdn Bhd v Owners of the Vessel “Shema” (2009) 2 MLJ 589 where the Court referring to the Rules of Court 2012 and the meaning attributed to the word “shall” as used in the Rules of Court 2012 held that the word “shall” means that the act specified was mandatory. [12] The Respondent submits that since the Statutory Notice was sent to a different address, the Statutory Notice was never served, thus the deeming provision of the Respondent’s inability to pay its debts is not triggered. Therefore, the Petition should be dismissed since the requirement of section 465(1)(e) read with section 466 1(a) has not been satisfied. THE COURT FINDINGS [13] I am in agreement with the decision of the Court in Ann Joo Metal Sdn Bhd, cited earlier where the Court held: “since it is nowhere pleaded that any of the documents (notice of demand and Petition) were never received, there was no injustice occasioned. Other then raising the technicality, the Respondent’s affidavit has not shown any injustice to have been occasioned.” [14] A similar position was taken by the Court in Pengurusan Bersama Anson v CTS Properties Sdn Bhd (2019) MLJU 1268 where the High Court held:

Even if the Respondent were to contest service of the notice, the Court has held that the Company which has filed Affidavit Opposing Petition is well aware of the case against it and any irregularity in service does not prejudice it as decided in ET Mix Sdn Bhd v Sun Steel Construction Sdn Bhd (2005) 5 MLJ 248, where the HC held: “In the present case the requirement has been fulfilled when the notice of demand was delivered to the registered office of the respondent by AR registered post. Furthermore, the respondent had entered appearance and filed a notice to oppose the petition. In addition, the respondent had also filed the affidavit opposing the petition and several other affidavits. The respondent knew what the case against them was. The respondent was not prejudiced at all even if the notice of demand was no properly served. The preliminary objection is hereby dismissed.” [15] Thus, I hereby find that this is an appropriate case for the exercise of this Court’s power under section 582 (1) and (2) of the CA 2016 to declare this proceeding to be valid notwithstanding and irregularity of service of the Statutory Notice, since the Respondent has not shown evidence that it suffered substantial injustice from the irregular of service. [16] I find that the Respondent has failed to raise any bona fide dispute to the debt claimed in the Statutory Notice and the Petition, I hereby grant the orders prayed for in the Petition with costs. Dated 25 March 2025 …………t.t……………………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PETITIONER: DARSHINI DEVI RAVINDRAN SOLICITORS FOR THE PETITIONER: TETUAN REVATHI & PARTNERS COUNSEL FOR THE RESPONDENT: DATO’ R KAMALANATHAN & VINOD KAMALATHAN SOLICITORS FOR THE RESPONDENT: TETUAN VINOD KAMALANATHAN & ASSOCIATES Cases Referred to: ➢ Ann Joo Metal Sdn Bhd v Pembenaan MY Chahaya Sdn Bhd [200] 5 MLJ 708 ➢ Kertih Part Sdn Bhd v Owners of the Vessel “Shema” (2009) 2 MLJ 589 ➢ Pengurusan Bersama Anson v CTS Properties Sdn Bhd (2019) MLJU 1268 Legislation Referred to: ➢ Companies Act 2016 ➢ Rules of Court 2012 Decision date: 11 March 2025