FUJIFILM BUSINESS INNOVATION ASIA PACIFIC PTE. LTD. (formerly known as Fuji Xerox Asia Pacific Pte. Ltd.) v STARHUB HOLDINGS SDN. BHD. (WA-28NCC-581-06/2025)

and 466 (1) (a) of the Companies Act 2016; And In the Matter of STARHUB HOLDINGS SDN BHD [Registration No.: 201801005009 (1267023-T)]; BETWEEN FUJIFILM BUSINESS INNOVATION ASIA PACIFIC PTE. LTD. (formerly known as Fuji Xerox Asia Pacific Pte. Ltd.) [Registration No.: 199202000004 (993478-A) … PETITIONER AND STARHUB HOLDINGS SDN BHD [Registration No.: 201801005009 (1267023-T)] … RESPONDENT GROUNDS OF JUDGMENT (PETITION TO WIND UP IN ENCLOSURE 1) A.

The Petitioner had obtained a Judgment in Default of Appearance before the Magistrate Court at Kuala Lumpur against the Respondent in the Civil Suit bearing number WA-A72NCVC-3824-09/2022. Judgment was entered as follows: -

The sum of RM 36, 268.93 as at 16-8-2022.

(ii) Interest on the sum of RM 36, 268.93 at the rate of 0.04% per day from 17-8-2022 to the date of settlement; and

(iii) Costs of RM 791.00.

The Respondent did not apply to set aside the said Judgment; therefore, it remains binding on the Respondent. There is no evidence before this Court of any such application filed by the Respondent.

Messrs Skrine, solicitors for the Petitioner, issued a demand for payment of the Judgment debt via its notice dated 19-3-2025

The Respondent had failed to comply with the said statutory notice. This caused the Petitioner to file the Petition to Wind-Up the Respondent pursuant to section 465(1)(e) and section 466

(1)(a) of the Companies Act.

The registered address of the Respondent based on the results of the search undertaken by the Petitioner is at 6-1-1, 1st Floor, Block D, Jalan Semarak Api 3, Diamond Square Business Centre, Off Jalan Gombak, 53000 Kuala Lumpur.

The process server employed by the Petitioner’s solicitors has affirmed an affidavit dated 20-6-2025 confirming that the Petition, its affidavit in support and all relevant cause papers were served at the Registered Address of the Respondent. There is no affidavit in response to rebut this statement.

The Petition was also advertised and gazette in accordance with Rule 24 of the Companies (Winding-Up) Rules 1972. The Petitioner had caused the said Notice to be Gazetted on 30-6- 2025 and advertised in the New Straits Times on 17-6-2025 and 18-6-2025 as well in the The Star on 19-6-2025 and 20-6-2025.

The Registrar’s Certificate was issued on 2-7-2025.

This Petition was fixed for hearing on 4-8-2025. The Respondent only filed its notice to appear and its appointment of solicitors on 1-8-2025. No affidavit in reply was filed by the Respondent.

The Petition is based on Section 465 and Section 466 of the Companies Act. I reproduce the relevant statutory provisions for ease of reference:- “Circumstances in which company may be wound up by

Court

The Court may order the winding up if—

the company is unable to pay its debts;” “Definition of “inability to pay debts

(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 the notice at the registered office of the company, and the company has for twenty-one days after the service of the demand neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor;”

In this case it is clear that the Respondent did not pay the full judgment sum / sum demanded after the receipt of the notice within the required 21 days and did fail to compound the sums demanded to the satisfaction of the Petitioner.

Therefore, the Petitioner has correctly argued that there is a presumption that the Respondent is insolvent. The failure to pay the said sums demanded within 21 days or have the sums compounded to the satisfaction of the Petitioner (Creditor) causes such a presumption to apply. It would then be for the Respondent to show that it is not insolvent. This can be seen in Sri Hartamas Dvpt Sdn Bhd v MBF Finance Bhd [1992] 1 CLJ 637 where the Supreme Court held: - “... In this case, the presumption of insolvency arises when the requirements of s. 218(2)(a) of the Act [note: equipollent to section 466(1)(a) of the CA 2016 ] have been satisfied and it is for the company to prove that it is able to pay its debts. In dealing with 'commercial insolvency', that is, of a company being unable to meet current demands upon it, we would respectfully follow the Privy Council in the Malayan Plantcase and cite the following observations from Buckley on the Companies Act (13th Ed) at p 460: In such a case it is useless to say that if its assets are realized there will be ample to pay twenty shillings in the pound: this is not the test. A company may be at the same time insolvent and wealthy. It may have wealth locked up in investments not presently realizable; but although this be so, yet if it have not assets available to meet its current liabilities it is commercially insolvent and may be wound up. Applying the test in the above-quoted observations, we therefore held that the learned judge had exercised his discretion correctly in ordering the appellant to be wound up.”

Also refer to Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248 where Gopal Sri Ram JCA held: - “But a petition for winding up is not execution, for a winding up petition is not based upon any judgment of a court. Normally, it is based on the inability of a company to pay its debts as and when they fall due. Such inability is normally evidenced by the company's inability to satisfy or compound a notice of demand issued pursuant to s. 218 of the Act.”

The applicable test when dealing with a Petition to wind up a company to determine whether it is solvent was also explained by Abdul Malik Ishak J in Pioneer Concrete (M) Sdn Bhd v Celini Corp Sdn Bhd [1999] 5 CLJ 145: - “In my judgment, where there is no doubt (and there is none here) that the petitioner is a creditor for a sum which would otherwise entitle him to a winding-up order, a dispute as to the precise sum which is owed to him is not of itself a sufficient answer to his petition.... It is germane to mention that the test of commercial insolvency is simple. It is this. Whether the company is unable to meet its current debts as they fall due? A company may have substantial wealth which cannot be realized immediately and if that happens the company is said to be unable to pay its debts within the purview and ambit of s. 218(1)(e) of the Companies Act 1965 and this is so even though on liquidation the company will be able to meet all its liabilities.”

I further refer to the decision of the Supreme Court in Lian Keow Sdn Bhd (in liquidation) & Another v Overseas Credit Finance (M) Sdn Bhd & Ors [1988] CLJU 44: - “In short, the question is not whether the debtor's assets exceed his liabilities as appeared in the books of the debtor, but whether there are moneys presently available to the debtor, or which he is able to realise in time, to meet the debts as they become due. It is not sufficient that the assets might be realisable at some future date after the debts have become due and payable.”

I further refer to the decision of the Court of Appeal in SSM Management Sdn Bhd v Aeon Big (M) Sdn Bhd [2019] 5 CLJ 695: - "[20] In this regard, it is settled law that once a company has failed to comply with the statutory demand, there is a presumption of insolvency against it. The onus then shifts to the company to show that it is able to pay all its debts at the material time. The test of insolvency, as the learned judge correctly noted, is the test of commercial insolvency or cash flow insolvency in that the company must be able to pay its debts when they fall due and not at some future date. In other words, the company must be willing and able to meet the current demand of the creditor. In this way, a company cannot be said to be solvent when it asserts that it is able to pay the debt but persists in not doing so.” Also refer to Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2011] 1 CLJ 947.

In this case, the Respondent had only entered appearance through the notice to oppose on 1-8-2025. The Respondent did not file its affidavit in response to the Petition despite receiving the said Petition as indicated in the affidavit of service of the Petitioner’s process server. I do note that the chop appearing in the said affidavit in support does state that he had attended the registered office of the company and the clerk receiving the said document did receive the same and chopped the name of a different company i.e. Wesford Corporation Sdn Bhd. Nevertheless, as this affidavit is not rebutted and that the said process server did indicate unequivocally that the said Petition and cause papers were served at the registered address of the Respondent, I find that the said documents were validly served at the appropriate address.

The failure by the Respondent to file its affidavit to oppose the application is fatal and renders the allegations to be unrebutted. The Respondent is required to file any affidavit to oppose the said application within 7 days before the hearing of the Petition. This is provided for in Rule 30 of the Winding Up Rules. I find that the Respondent had sufficient time to file an affidavit in response if indeed that it (i) did not receive the Petition and (ii) has a valid defence to the claim and the Judgment entered against it. To merely expect this Court to allow the adjournment sought is not warranted especially in view of the need to dispose of cases in an efficient and timely manner. The Respondent’s counsel also did not indicate that there is any pending application to set aside the Judgment in Default that remains binding since 2022.

As such, I find that the facts of this case as disclosed in the affidavit filed by the parties did not show that the company is solvent. There is no evidence produced to show that the Respondent is able to pay the debts that are due. No statement of accounts or cash flow statement of the Respondent was produced to show that it is solvent as required by law to justify its opposition to the Petition.

The above is based on the judgment of Abdul Malik Ishak J in Pioneer Concrete (supra): - " ... A passage from the judgment of Plowman J. In Re Tweeds Garages Ltd [1962] 1 Ch D 406 merits reproduction. That passage would nip in the bud the problem... and that passage reads as follows (see pp 413-414 of Plowman J's decision): From those sections it appears that the only qualification which is required of the petitioners in this case is that they are creditors and about that, as I have said, there is really no dispute. Moreover, it seems to me that it would, in many cases, be quite unjust to refuse a winding-up order to a petitioner who is admittedly owed moneys which have not been paid merely because there is a dispute as to the precise amount owing. If I may refer to an example which I suggested in the course of argument, suppose that a creditor obtains judgment against a company for £10,000 and after the date of the judgment something is paid off. There is a genuine bona fide dispute whether the sum paid off is £10 or £20. The creditor then presents a petition to have the company wound up. Is the company to be entitled to say: 'It is not disputed that you are a creditor but the amount of your debt is disputed and you are not, therefore, entitled to an order?' I think not.”

I therefore find that the presumption of insolvency remains applicable against the Respondent and the company should be wound up pursuant to the applicable statutory provisos referred to earlier.

I also find that the Petitioner has fulfilled the requirements of Rule 32(1) of the Companies (Winding Up Rules) 1972. Therefore, as the papers are in order and that the company is insolvent, I direct that it be wound up in accordance with section 465 of the Companies Act 2016.

For the above reasons, I allow the Petition and order that the company be wound-up with costs of RM 5000.00. Dated 22nd October 2025 (YA DATO' INDERA MOHD ARIEF EMRAN BIN ARIFIN) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR NCC 5 FEDERAL TERRITORY OF KUALA LUMPUR Counsel :