Global Tobacco Manufacturers (International) Sdn. Bhd. v GTM Land & Property Sdn Bhd (PA-28NCC-85-07/2024)

[3] GTM Land & Property Sdn. Bhd. (Company No.: 201001005493 (890111-A)) (Respondent), was incorporated on 12.02.2010 under the old statute of the Companies Act 1965 as a private limited company limited by shares. [4] The registered address of GTM Land & Property Sdn. Bhd. is at No. 29A, Lorong P.S.1, Bandar Perda, 14000 Bukit Mertajam, Penang, whereas its business address is at 3406, Level 5, Jalan Machang Bubok 2, Kelab Rekreasi Tropika (Vangohh Eminent), 14020 Bukit Mertajam, Penang. [5] The authorised capital of GTM Land & Property Sdn. Bhd. is RM6.0 million and the issued share capital is RM6.0 million divided into 6.0 million ordinary shares. [6] The nature of the business of GTM Land & Property Sdn. Bhd., as stated in the SSM official search, is a property development company. Page 3 of 20 The Parties In The Civil Suit No. PA-22NCVC-98-06/2023 At High Court Of Malaya, Penang [7] On 13-06-2023, Global Tobacco Manufacturers (International) Sdn. Bhd. (Petitioner), as the Plaintiff, filed a suit at the High Court of Malaya at Penang, Civil Suit No. PA-22NCVC-98-06/2023 (Suit 98), to claim for an undisputed monetary sum of RM 14,471,137.44 which is due and owing by the Respondent (as a Defendant) to the Petitioner, whereby the cause of action and/or the subject matter therein was for breach of contract premised upon a Memorandum of Understanding Agreement dated 11.1.2011 and a Joint Venture Agreement dated 26.11.2012 entered between the Petitioner and the Respondent. [8] Later, an application for stay (Enclosure 23) of the entire proceedings of Civil Suit 98 was filed by the Respondent/Defendant to remove Chan and Chong by reason of nominal directors, but was dismissed. Another application for stay (Enclosure 29) of Suit 98 filed by the Respondent/Defendant under Section 470 of the Companies Act 2016 by reason of presentation of Petition 57 was also dismissed by that Court. [9] Subsequently, on 4.12.2023, the Petitioner/Plaintiff obtained a judgment against the Respondent/Defendant for the amount of RM 14,471,137.44 (Judgment Sum). Demand for the Judgment Sum of RM14,471,137.44 on the Respondent [10] On 15-01-2024, the Petitioner via its Solicitors, sent a letter of demand to the Solicitors for the Respondent, to demand the Judgment Sum of RM 14,471,137.44 together with the costs which were granted and allowed in favour of the Petitioner/Plaintiff in Suit 98. Page 4 of 20 [11] The Solicitors for the Respondent, via their letter dated 17.01.2024, replied to the Petitioner solicitor’s letter and refused to pay the Judgment Sum. [12] On 24.01.2024, a statutory Notice of Demand (Notice) pursuant to Section 466(1)(a) of the Companies Act 2016 was duly issued and served by the Solicitors for the Petitioner to both registered and business addresses of GTM Land & Property Sdn. Bhd, requiring the Respondent to pay the Judgment Sum due, failing which the Respondent shall be deemed to be unable to pay its debts. On 1.7.2024, this winding-up petition was filed for the Respondent's failure to comply with the Notice and its inability to pay. [13] On 6.9.2024, both appeals against the decision in Suit 98, on the Judgment Sum, and the dismissal of the stay in Enclosure 29 under Section 470 of the Companies Act 2016, were unanimously dismissed by the Court of Appeal led by Justice Datuk Supang Lian, together with Justice Dato’ Azizul Azmi bin Adnan, and Justice Dato’ Ahmad Fairuz bin Zainol Abidin, where the Court of Appeal held that despite whatsoever disputes between the shareholders, it shall not affect the liability of the Respondent being a separate corporate entity, to pay, and the winding-up petition shall not give any preferential priority to the Plaintiff/Petitioner over other unsecured creditors as all creditors shall be ranked pari passu. [14] Pending hearing of this winding-up petition, the Respondent filed a Stay Application in Enclosure 12 pursuant to Section 470 of the

an order that the Petition dated 1.7.2024 presented by Global Tobacco Manufacturers (International) Sdn Bhd together with the Affidavit Verifying Petition affirmed by Chan Eng Leong on 3.7.2024, be stayed forthwith following the presentation of the Winding-Up Petition dated 21.7.2020 in the matter under Penang High Court Companies (Winding-Up) Petition No. PA- 28NCC-57-07/2020 between Natural Transforms Sdn Bhd as petitioner against GTM Land & Property Sdn Bhd, Goh Choon Kirn and Ong Ah Poh as respondents ('the pending Winding-up Petition'), pursuant to Section 470 of the Companies Act 2016;

further, an order that the Petition herein dated 1.7.2024 presented by Global Tobacco Manufacturers (International) Sdn Bhd together with the Affidavit Verifying Petition affirmed by Chan Eng Leong on 3.7.2024, be stayed forthwith pending the hearing of the pending Winding-up Petition together with all other Winding-up Petitions presented by Natural Transforms Sdn Bhd against the associate companies of GTM Land & Property Sdn Bhd following the Order of the Court of Appeal dated 7.7.2022 in the matter under Court of Appeal Civil Appeal

an Order that Chan Eng Leong and Chong Bee Choo, as the directors of the Petitioner, do personally pay the costs of the Notice of Motion filed herein; and

an Order that there be such further and/or other reliefs or the directions as may be deemed necessary. Petitioner’s Contention [15] Generally, the Petitioner contended that the Respondent is commercially insolvent and that there is a monetary Judgment which is undisputed and affirmed by the Court of Appeal, and the leave to appeal to the Federal Court was also dismissed. [16] The Petitioner further contended that the Respondent has failed to discharge its debt within 21 days from the date of issuance of the Statutory Page 6 of 20 Notice of Demand dated 24.1.2024 and is therefore presumed insolvent under Section 466(1)(a) of the Companies Act 2016. [17] The Petitioner also contended that the stay application was filed to delay enforcement and constitutes an abuse of process. Further, a similar stay application under Section 470 of the Companies Act 2016 was dismissed by the High Court and affirmed by the Court of Appeal. This gives rise to estoppel and res judicata. [18] The Petitioner further contended that Section 470 of the Companies Act 2016 is to stay further proceedings that are pending, not to stay a winding-up petition. Also, the property owned by a third party cannot be used for security as a condition for a stay of the Petition. [19] Additionally, other suits are not relevant and not binding on this winding-up petition, particularly the Order of the High Court dated 4.12.2023 in Suit 98, which was affirmed by the Court of Appeal on 6.9.2024, and the application for leave to appeal at the Federal Court was dismissed on 20.3.2025. Therefore, the shareholders' disputes in Suits 8 and 239 are immaterial as such disputes do not affect the Respondent’s liability to pay the judgment debt. Respondent’s Contention [20] Briefly, the Respondent is opposing the Petition on the following grounds-i) that the Petition is filed in the name and on behalf of the Petitioner by Chan Eng Leong; Page 7 of 20 ii) that there is currently pending a Winding-up Petition filed by Natural Transforms as petitioner against GTM Land as respondent in the matter under Penang High Court Companies (Winding-up) Petition No. PA-28NCC-57-07/2020, and that the Court of Appeal had on 7.7.2022 in the matter under Court of Appeal Civil Appeal No. P-02(IM)(NCC)-1751- 09/2021 ordered that the said pending Winding-up Petition together with a series of pending Winding-up Petitions presented by Natural Transforms against the associate companies of the Respondent be heard after the issue of ownership of the shares registered in the name of Natural Transforms is determined; iii) the said sum of RM14,471,137.44 raised by the Petitioner is an inter-company debt between the Petitioner and the Respondent following a joint development between the Petitioner as landowner and the Respondent as developer pursuant to the Memorandum of Understanding Agreement dated 11.1.2011 and the Joint Venture Agreement dated 26.11.2012 which remains subsisting to date as apparent from the Order of High Court dated 20.3.2024, the Consent Order dated 4.4.2024 on the undertaking of the Respondent on their own behalf and on behalf of the Petitioner to apply for the issuance of the strata titles; v) that Chan Eng Leong as director of the Petitioner appointed on 28.5.2019 had had no personal knowledge of or involvement in the said Memorandum of Understanding Agreement dated 11.1.2011 and the Joint Venture Agreement Page 8 of 20 dated 26.11.2012 or the inter-company debt of RM14,471,137.44, or any of the matters covered under the said Orders of Court dated 20.3.2024 and 4.4.2024 about GTM Land's undertaking on their own behalf and on behalf of Global Tobacco to apply for the issuance of strata titles; vi) that the Petition herein would not be in the interest of the Petitioner, the Respondent and the purchasers of Tropicale Residency Project as it would have serious implication and adverse effect not only on the process of subdivision of the said land and the issuance of the strata titles being undertaken by the Respondent on their own behalf and on behalf of the Petitioner, but also the entitlement of the purchasers of Tropicale Residency Project of the houses thereon to receive the strata titles; and vii) that the Petition herein is not in the interest of the Petitioner and the Respondent, as both are family-related companies with the majority shareholders being family members, and that there are indeed no issues to warrant any action as between the Petitioner and the Respondent or any action by a third party against the Respondent. [21] The Respondent contended that the Petition is an attempt on the part of Chan Eng Leong on behalf of his nominator, Natural Transforms to pre-empt and overreach the said Order of the Court of Appeal dated 7.7.2022 that the said pending Winding-up Petition against the Respondent together with a series of pending Winding-up Petitions against the associate companies as presented by Natural Transforms be Page 9 of 20 heard after the issue of ownership of the shares registered in the name of Natural Transforms is determined. [22] The Respondent contended that the Petition amounts to abuse of the winding-up process as mere non-payment of an undisputed debt does not automatically mean that the Court must order a winding-up order. The Respondent also contended that it is solvent and able to meet liabilities (balance sheet test). [23] The Respondent further contended that the application for stay is pending resolution of shareholders' disputes. The outcome of Suits 8 and 239 will have a determinative bearing on the members of the Petitioner and its directors. [24] The Respondent also offered valuable security for the stay, where the Respondent highlights that a third party has offered security for over an unencumbered freehold land with a clubhouse valued at RM18,000,000.00, which demonstrates good faith and negates any notion that the stay application is intended as a tactical manoeuvre to delay the disposal of the Petition. The Respondent contended that there is no prejudice caused to the Petitioner that cannot adequately be compensated by an appropriate order of costs. The Respondent submitted that the winding-up petition lacks bona fide as the Petition is an attempt to retrieve the Judgment Debt to allow the Petitioner to move on with its operation and it is wrongful to file a Winding-up Petition to recover a debt. Page 10 of 20 ANALYSIS AND FINDINGS Enclosure 1 [25] This is a petition filed by the Petitioner to wind up the Respondent under Section 464(1), 465(1)(e), read together with Section 466(1)(a), of the Companies Act 2016, on the ground that the Respondent is unable to pay its debts pursuant to a judgment obtained by the Petitioner on 4.12.2023 against the Respondent. The Judgment remains valid, binding, enforceable, and unpaid. It has not been varied or set aside as of the hearing of the Petition. It therefore, constitutes a final and conclusive debt owed to the Petitioner. [26] The Petition was heard on 16.10.2025. The Petitioner’s cause papers were in order, and a Registrar’s Certificate was duly issued pursuant to the Companies (Winding Up) Rules 1972 (the Rules 1972). [27] The law clearly states that a judgment debt is an undisputed debt (see: Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 2217, Court of Appeal). Therefore, a winding-up petition based on an unsatisfied judgment debt gives rise to a statutory presumption of insolvency under Section 466(1)(a) of the Companies Act 2016. [28] Reference is also made to the case of Klass Corp (M) Sdn Bhd v MKRS Management Sdn Bhd [2018] 9 MLJ 305, where it was held that once a judgment is obtained, the debtor’s failure to satisfy it within the statutory period creates a presumption of inability to pay its debts under section 466(1)(a) of the Companies Act 2016. Unless the judgment is set aside or stayed, the debt is not subject to dispute. Particularly, the neglect to pay current demands, regardless of whether the debtor is in possession Page 11 of 20 of assets. The test of commercial insolvency is applicable as to whether a respondent company is unable to meet its current debts as they fall due. It was held that- “[70] It is, in any event, now settled law that the issue on the inability to pay debt is to be considered in commercial context, which is the neglect to pay current demands regardless of whether the debtor is in possession of assets which, if realised would permit it to discharge its liabilities. The test of commercial insolvency simply means that the respondent company is not able to meet current debts when they fall due (see System Communication Engineering Sdn Bhd v. Zabidin Sdn Bhd [1999] 5 MLRH 826; [1999] 1 AMR 1187). [71] This is why it has been said that a company could be both insolvent but wealthy at the same time (see, for example, the Privy Council's decision in Malayan Plant (Pte) Ltd v. Moscow Narodny Bank Ltd [1980] 1 MLRA 488; [1978] 2 MLJ 81 and the Supreme Court's decision in Sri Hartamas Development Sdn Bhd v. MBF Finance Bhd [1992] 1 MLRA 311; [1992] 1 MLJ 313; [1992] 1 CLJ 303). It is wholly insufficient that the assets might be realisable at some future date after the debts have become due and payable (see the Supreme Court's decision in Lian Keow Sdn Bhd (In Liquidation) & Anor v. Overseas Credit Finance (M) Sdn Bhd & Ors [1987] 1 MLRA 672; [1988] 2 MLJ 449). [72] I also had the occasion to state this important principle in Aeon Big (M) Sdn Bhd v. SSM Management Sdn Bhd [2017] MLRHU 1327; [2017] 8 AMR 732 as follows: "[45] In the first place it is trite law that even though a company may possess of wealth in the form of investments not presently realisable, if the company has no assets available to meet its current liabilities, the company is legally commercially insolvent and may be wound up (see the Supreme Court decision in Sri Hartamas Development Sdn Bhd v. MBF Finance Bhd [1992] 1 MLRA 311; [1992] 1 MLJ 313; [1992] 1 CLJ 303). The test of solvency is one of cash flow solvency, not balance sheet solvency". [29] Likewise, in Gulf Business Construction (M) Sdn Bhd v Israq Holding Sdn Bhd, [2010] 2 MLRA 411, the Court of Appeal held that the presumption of inability to pay arises automatically once the debtor fails Page 12 of 20 to comply with a statutory demand based on a judgment debt. It is justified to grant a winding-up order. The Court of Appeal held- “[3] The court order dated 3 June 2005 has not been set aside nor varied. It remains as a court order and it is contempt to disobey an order of the court. It is no answer to an action for contempt to argue that the court order should not have been made. The correct course to take would be to challenge the court order by applying to have it set aside. In Hadkinson v. Hadkinson [1952] P 285, CA, at p 288, Romer LJ put it nicely in these salient words:- It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. [10] The failure of the debtor to pay the debt within 21 days (three weeks) after the service of the notice of demand entitles the creditor to present a petition and that petition cannot be restrained by an injunction. And it is not open to the debtor to say that it is able to pay the debt but chooses not to (Cornhill Insurance Plc v. Improvement Services Ltd And Others [1986] 1 WLR 114). [11] The failure on the part of the company to pay as demanded would trigger the presumption that the company is unable to pay its debt. This presumption is, however, rebuttable. The onus shifts onto the company to show that it is able to pay the debt (PT Anekapangan Dwitama v. Far East Food Industries Sdn Bhd (supra)). Thus, the inability to pay on the part of the company gives the requisite jurisdiction of the court to make a winding-up order against the company (Securicor (M) Sdn Bhd v. Universal Cars Sdn Bhd. [1984] 2 MLRH 48; [1985] 1 MLJ 84).”. [30] In the present case, it is not disputed that the Petitioner, through its solicitors, issued and served upon the Respondent, the Notice which is a statutory notice of demand, pursuant to Sections 465(1)(e) and 466(1)(a) of the Companies Act 2016. The Notice was also duly served on the Respondent. Page 13 of 20 [31] Accordingly, the 21-day period has lapsed since the service of the Notice. However, the Respondent has failed to pay the debt, whether in whole or in part. In these circumstances, failure to pay within the stipulated 21 days will give rise to the statutory presumption that the Respondent is unable to pay its debts, thereby conferring on the Court the jurisdiction to grant a winding-up order. [32] Statutory presumption is rebuttable, and it is the responsibility of the Respondent to prove that, at the relevant time, it was able to pay its debts as they became due. It is apparent that the Respondent is unable to pay its debts within the meaning of Section 465(1)(e) read with section 466(1)(a) of the Companies Act 2016. [33] Further, on the issue of multiple winding-up petitions, in the case of Maril Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Banker Bhd & Other Appeals [2001] 1 MLRA 270, the Court of Appeal held- “[19] There you have it. I require no clearer authority for the proposition that more than one winding up petition may be presented against a company. Of course, the provisions of r 33 is available to a petitioning creditor. And if he does not take advantage of that rule to have himself substituted for a lethargic petitioner, he may find himself out of pocket for his costs. But on no account is his petition bad in law. Nor is it an abuse of the court's process.” Enclosure 12 [34] Apparently, under Section 470 of the Companies Act, the court is only empowered to stay other pending proceedings against a company which is in the process of being wound-up, not the winding-up proceeding Page 14 of 20 against the company (see: Sri Jeluda Sdn Bhd v. Pentalink Sdn Bhd [2008] 4 CLJ 359; [2008] 1 MLRA 357). [35] In Sri Jeluda Sdn Bhd (supra), the Court of Appeal held that “For reasons which we have explained, on the first issue, we conclude that s. 222 of the Act does not empower the court to stay the proceeding of the winding-up petition before it.” [36] Section 222 of the Companies Act 1965 is pari materia to Section 470 of the Companies Act 2016, which provides- “470. Power of Court to stay or restrain proceedings against company prior to order of winding up.

At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.”. [37] Section 222 of the Companies Act 1965- “At any time after the presentation of a winding-up petition and before a winding-up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the proceedings accordingly on such terms as it thinks fit”. [38] Additionally, in the case of CIMB Bank Berhad v. Consobiz Ventures Sdn Bhd & Ors, [2018] MLRHU 1031, Justice Nazlan held- “[35] The proper scope of s 470 was explained in the High Court case of Shing Hup Hin Construction Sdn Bhd v. General Soil Engineering Sdn Page 15 of 20 Bhd [1998] 3 MLRH 260; [1999] 1 MLJ 167; [1999] 1 CLJ 303; [1999] 2 AMR 1688, where Abdul Aziz J (as he then was), when clarifying on s 222 of the Companies Act 1965 which is in pari materia with s 470 of the Companies Act 2016 stated: "The making of an application under s 222, as represented by the words "may....apply", is to be done "At any time after the presentation of a winding up petition and before a winding up order has been made", that is to say, during the pendency of the winding-up petition in question, which in this case is the present winding-up petition. That is the time factor. The event or case that gives rise to the need to apply is "where any action or proceeding against the company is pending", the "company" there being the company that is sought to be wound up, which in this case is the respondent company. That case or event must, of necessity, also be existing during the time factor, that is to say, during the pendency of the winding-up petition in question. Coupling the time factor with the case or event, we have a situation where, during the pendency of the winding-up petition in question, there is pending - that is to say, by necessity of logic, also pending - an action or proceeding against the company that is sought to be wound up. The action or proceeding that is also pending must be other than the winding-up petition in question, although it may be some other winding-up petition. Now what may be applied for and ordered under s 222 is a stay of further proceedings in the action or proceeding that is also pending, not further proceedings in the winding-up petition in question, which in this case is the present winding-up petition.' [Emphasis Added] [36] A stay in the context of s 470 is intended to preserve the assets of the company subject to the winding up petition. Distribution of the assets, should the company be wound up would thus be undertaken in the liquidation process. The continued pursuit of other collateral proceedings when winding up proceedings are already afoot tends to promote a scramble for the assets of the company sought to be wound up. [37] Thus, the Court of Appeal, in the case of Sri Jeluda Sdn Bhd v. Pentalink Sdn Bhd [2008] 1 MLRA 357; [2008] 3 MLJ 692; [2008] 4 CLJ 359, in the judgment delivered by Ahmad Maarop JCA (now PCA) observed as follows:- "[13].........During this interim period the company may be said to be in limbo. Until the court makes the winding-up order, it is not certain that the company will be wound up although the possibility of a winding-up order being made is real. In this connection, in Palmer's Page 16 of 20 Company Law, 24th edn, p 1448, on staying proceeding, the learned author made the following observation: "The object of the winding-up provisions of the Companies Act 1862," said Lindley LJ. In Re Oak Pitts Colliery Co, "is to put all unsecured creditors upon an equality and to pay them paripassu." To accomplish this it was indispensable that proceedings against the company by way of action, execution, distress or other process should be suspended; otherwise the winding up would resolve itself into a scramble for the assets. [14] Thus, the purpose of giving the court the power under s 222 of the Act to stay further proceedings in action or proceeding (other than the hearing of winding-up petition pending before the court), is to enable the court to ensure that no creditor shall gain priority over others of his class.". [38] A winding up Court may however adjourn the hearing of a petition conditionally or unconditionally under s 469 of the Companies Act 2016. This power was previously found in s 221 of the Companies Act 1965).” [39] Based on the cases of Sri Jeluda Sdn Bhd (supra) and CIMB Bank Berhad (supra), Section 470 does not empower this Court to stay the winding-up proceedings, but only to stay further proceedings in action or proceeding in other courts. (other than the hearing of winding-up petition pending before the court). [40] Furthermore, in Maril Rionebel (M) Sdn Bhd (supra), the Court of Appeal held: “[43] As pointed out by my learned brother Gopal Sri Ram JCA, the unhealthy trend is, upon being served with a petition, instead of defending the petition proper at the hearing of the petition, the respondent makes all kinds of interlocutory applications. That would invariably stall the hearing of the petition proper. If the application is dismissed, the respondent would appeal to the Court of Appeal or may even try to go further, further delaying the hearing of the petition. I have come across cases where even an order made by the senior assistant registrar under r.32 of the Companies (Winding-Up) Rules 1972 was appealed against and when the appeal was dismissed, the respondent further appealed to the Supreme Court – see Asia Commercial Finance (M) Berhad v Lum Page 17 of 20 Choon Realty Sdn Bhd (Penang High Court Companies Winding-Up No: 28-60-92). Of course, having filed the notice of appeal, the respondent then filed a notice of motion to stay all proceedings pending the disposal of the appeal by the then Supreme Court. When the notice of motion was dismissed, another appeal was filed. The effect is that hearing and disposal of the petition is delayed. [47] In Sun Microsystems Malaysia Sdn Bhd [200] 4 CLJ 72, I stressed the difference between the procedure in respect of a writ action under the RHC 1980 and a winding-up petition under the Companies (Winding-Up) Rules 1972: It is important to note that the procedure in a winding-up proceeding as provided by the Companies (Winding-Up) Rules 1972 is different from the procedure in a writ action as provided by the Rules of a High Court 1980 (RHC 1980). In a winding up proceeding, the procedure is simple and brief. That is what it is meant to be. When a petition is filed, the senior assistant registrar gives a hearing date straightaway before the petition is issued. The petitioner is expected to do everything he or it has to do in terms of complying with the procedural requirements eg, serving, gazetting and advertising, before the hearing date. The petition is to be heard on the date fixed for hearing. On the other hand, in a writ action upon filing no date (be it for hearing or for mention) is given by the senior assistant registrar He merely signs the writ and issues it. The writ itself clearly says: We command you that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you at the suit of... And take notice, that in default of you so doing the plaintiff may proceed therein to judgment and execution. (emphasis added.) The trial date is a long way off. Indeed, there may not be none at all. It is important that the procedure applicable in a writ action should not be incorporated into a winding-up proceeding. It is not meant to be. Appearance is required (and provided for) in a writ action so that the plaintiff will know whether to take a judgment in default or not. If an appearance is filed, followed by defence, then at the close of the pleadings, the plaintiff should apply for directions and ask for the case to be set down for trial. In other words, he asks for a trial date. That is not necessary in a winding-up petition because the hearing date has been given even before the petition is issued. That is why there is no provision for Page 18 of 20 appearance, defence, summons for directions, setting down for trial etc in a winding up proceeding. [49] Having written on it four times and in two languages, it is timely that my learned brother Gopal Sri Ram JCA and this court come out strongly against such practice, which, at the very least is delaying the hearing and disposal of winding-up petitions, which is unfair to the petitioners and clogging the court docket. [41] It is a trite law that winding-up proceedings need to be disposed of expeditiously (Maril Rionebel (M) Sdn Bhd (supra)). All kinds of unnecessary interlocutory applications have the effect of delaying winding-up proceedings. [42] Therefore, this Court is of the view that the question of whether there exist special circumstances or otherwise to grant the stay, is only applicable to stay further proceedings in an action or proceeding in other courts, not the winding-up. Thus, this Court need not address whether the stay application herein presents special circumstances. [43] However, for the sake of argument, this Court reiterates that it is now well settled that the 'special circumstances' approach should be adopted and applied (see: Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 1 MLRA 536, Federal Court). [44] The Petitioner has submitted that the Respondent’s affidavit in support of the stay application does not disclose any special circumstance to justify a stay. This Court agrees. Page 19 of 20 [45] In this regard, this Court observed that the Respondent has applied to stay the entire proceedings in Civil Suit No. PA-22NCVC-98-06/2023 (Suit 98), which was dismissed, and there was no appeal filed against this decision. Later, there was another application to stay the entire proceedings in Suit 98, which was also dismissed on 4-12-2023. The Court of Appeal confirmed and upheld the dismissal on 6-9-2024, and on 20-3-2025, leave to appeal to the Federal Court was refused. As such, this Court agrees with the Petitioner’s contention that the same grounds & reasons have been relitigated by the Respondent, which have been considered & dismissed by the Court of Appeal and the Federal Court. [46] Thus, simply put, the Respondent is now estopped and barred by res judicata from raising the same issues (see Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (Supreme Court). [47] Clearly, Section 470 of the Companies Act 2016 only empowers the court to stay an action or proceeding that is pending, but it does not stay the winding-up petition of the Respondent’s application in Enclosure 12. This Court is not clothed with the power or authority to grant a stay under Section 470 of the Companies Act 2016. Therefore, Enclosure 12 cannot stand. CONCLUSION [48] Based on the above deliberations, Enclosure 12 is dismissed with cost, and Enclosure 1 is allowed with cost, accordingly. Dated: 10 December 2025 Page 20 of 20 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court Georgetown, Pulau Pinang For the Petitioner: Karin Lim, Tan Wei Ceat, Low Kai Xin & Kelvin Leong Messrs. Tan Wei Ceat & Co. For the Respondent: David Matthews & R Prem Anand Messrs. Mathews Hun Lachimanan