Greenclipper Corporation Sdn. Bhd. v Regal Enterprise Sdn. Bhd. (WA-28NCC-1073-10/2025)

There were two enclosures before me for decision. Both were heard together as they arose from the same set of facts.

Enclosure 1 is the Petitioner’s petition to wind up the Respondent under section 466 of the Companies Act 2016 (CA 2016).

Enclosure 11 is the Respondent's application under section 470(1) of the CA 2016 for a stay of the winding-up proceedings pending the disposal of its appeal to the Court of Appeal.

After considering the cause papers and the parties’ written and oral submissions, I allowed the winding-up petition in Enclosure 1 and dismissed the stay application in Enclosure 11. I now give my reasons.

The Petitioner and the Respondent were landlord and tenant. By a tenancy agreement dated 12 December 2011, the Petitioner let the land held under Geran 69717, Lot 682, Seksyen 92, Bandar Kuala Lumpur, together with a two-storey detached house on it (the Premises), to the Respondent. S/N m2dc4vj1q0yJkswBzJUaXA

Due to tenancy disputes between the parties, the Petitioner commenced Civil Suit No. WA-22NCvC-469-08/2022 against the Respondent. On 18 June 2025, following a full trial, judgment was entered in the Petitioner’s favour (the Judgment). The Respondent’s counterclaim was dismissed in its entirety.

As at 10 July 2025, the sum due under the Judgment was RM2,990,172.21 (the Judgment Debt). Dissatisfied with the Judgment, the Respondent appealed to the Court of Appeal in Civil Appeal No. W-02(NCvC)(W)-1334-07/2025 (the Appeal).

Following the Judgment, the Respondent made several attempts to resist or delay its consequences, all unsuccessful. On 8 October 2025, the Respondent’s application to stay execution of the Judgment was dismissed with costs of RM2,000.00. Further, on 16 October 2025, the Respondent's application for a Fortuna Injunction, vide Originating Summons No. WA-24NCvC-3585-07/2025, was dismissed with costs of

On 17 December 2025, the Petitioner’s application for leave to issue a writ of possession was allowed. On 23 December 2025, the Respondent’s application to set aside the said leave was dismissed with costs of RM1,500.00, leaving the Petitioner's writ of possession pending execution.

Subsequently, on 23 July 2025, the Petitioner’s solicitors served a statutory notice of demand under section 466 of the CA 2016 S/N m2dc4vj1q0yJkswBzJUaXA (section 466 Notice) on the Respondent at its registered address, demanding payment of the Judgment Debt within 21 days. It is not disputed that the Respondent received the section 466 Notice. Nevertheless, the Respondent did not pay any part of the sum demanded, nor did it offer any security or composition.

The Petitioner presented the winding-up petition in Enclosure 1 on 16 October 2025, seeking the Respondent's winding up and the appointment of the Official Receiver as liquidator. The Respondent opposed the petition and, on 26 December 2025, filed Enclosure 11, an application under section 470(1) of the CA 2016 to stay the winding-up proceedings pending disposal of the Appeal, supported by an affidavit in Enclosure 12.

The Petitioner contended that the Judgment Debt is not disputed. It relied on Klass Corporation (M) Sdn Bhd v MKRS Management Sdn Bhd [2018] 9 MLJ 305, in which the court held that a judgment debt cannot be regarded as disputed, and that any dispute has already been resolved by the judgment, unless the judgment is stayed or set aside. The Petitioner also relied on Geoforce East Sdn Bhd v Melati Evergreen Sdn Bhd [2021] MLJU 549, for the proposition that the mere filing of an appeal does not render a judgment debt disputed, nor S/N m2dc4vj1q0yJkswBzJUaXA does it operate as a stay of execution; and on Wong Huo Sung v Hati International Sdn Bhd [2025] MLJU 4738, which confirmed that a debtor can only resist a winding-up petition by showing a genuine and substantial dispute supported by cogent evidence, and that bare denials will not suffice.

The Petitioner argued that the Respondent has offered nothing beyond a bare denial of liability. It also noted that the Respondent’s Fortuna Injunction application, which raised the same disputed debt argument, had already been dismissed by another High Court for lack of a bona fide dispute.

The Petitioner contended that non-payment of a statutory demand under section 466(1)(a) of the CA 2016 gives rise to a rebuttable presumption of insolvency, citing Eastool Industries Sdn Bhd v Getfirms Electronics Sdn Bhd [2001] 2 MLJ 641 and Hotel Royal Ltd Bhd v Tina Travel & Agencies Sdn Bhd [1990] 1 MLJ 21. It further contended that the Respondent has failed to discharge the onus of rebutting that presumption, and that even a solvent company cannot resist a winding-up petition by simply refusing to pay an undisputed debt, relying on Sime Darby Energy Solution Sdn Bhd v Rzh Setia Jaya Sdn Bhd [2022] 1 MLJ 458 and Pacific & Orient Insurance Co Bhd v Muniammah Muniandy [2010] MLJU 2217, where it was held that once a debt is clearly established, the court will not ordinarily interfere even if the company appears solvent. S/N m2dc4vj1q0yJkswBzJUaXA

Finally, the Petitioner contended that the petition is bona fide and that no special or exceptional circumstances justify dismissal. The Petitioner further stated that the Respondent’s arguments essentially repeat those already rejected in the Fortuna Injunction application, and that recasting findings made after a full trial on termination, double rental, estoppel, forfeiture notices, or alleged inconsistencies in the pleadings amounts to a collateral attack on the Judgment, which cannot be permitted, as a winding-up court is not an appellate forum.

Regarding hardship, the Petitioner relied on Homewest Sdn Bhd v Vision Returns Sdn Bhd [2016] 5 CLJ 922, in which it was held that the adverse effect of a winding-up order on the respondent is irrelevant where the respondent is commercially insolvent, and that a respondent who fails to pay a sum due is the author of its own misfortune.

The Respondent argued that the winding-up petition is based on a disputed debt. It contended that the Petitioner unlawfully terminated the tenancy, thereby manufacturing an excessive and unreasonable double-rental claim, and that the cause of action in the underlying suit is unsustainable.

The Respondent raised four questions it said were genuinely in dispute:

whether the Petitioner could terminate the tenancy without a forfeiture notice under the National Land Code S/N m2dc4vj1q0yJkswBzJUaXA 1965, given the Petitioner's own confirmation that the parties would proceed with the offer dated 28 May 2021.

whether the Petitioner's cause of action was wrong to rely on a tenancy-at-will rather than a fixed-term extension.

whether the 2021 termination contravened the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020.

whether the Petitioner’s claim constitutes unjust enrichment.

The Respondent argued that the pending Appeal is of paramount importance because the Court of Appeal may determine whether the quantum claimed is accurate, and that the debt is disputed because the Petitioner cannot approbate and reprobate, having terminated a tenancy-at-will after confirming a fixed-term extension. It further submitted that the Petitioner, as landlord with superior bargaining power, is using the Judgment as a tool against the Respondent, and that pursuing the petition before the Appeal is resolved is tantamount to "arm-twisting" intended to stifle the Appeal. On this basis, it says the section 466 Notice is void.

The Respondent further contended that the winding-up petition should be dismissed because the validity and quantum of the alleged debt go to the very foundation of the petition, and that S/N m2dc4vj1q0yJkswBzJUaXA the section 466 Notice was accordingly premature, improper, and excessive. It further stated that the petition was filed for a collateral purpose and amounts to an abuse of process, in that the Petitioner is using it to recover a disputed sum and to pressure the Respondent into incurring costs that would discourage it from pursuing the Appeal. For these propositions, the Respondent relied on Christopher Michael Cheow v ANS Builders Sdn Bhd [2012] 9 CLJ 727, for the principle that a winding-up petition premised on a bona fide disputed debt is an abuse of process because the petitioner is, in such a case, not a "creditor" within the meaning of the Act; and on Salak Park Development Sdn Bhd v Fajar Menyensing Sdn Bhd [1994] 4 CLJ 580, for the principle that where a petition is presented for a collateral purpose, such as to pressure the company, the court has inherent jurisdiction to restrain the abuse.

It is trite that a judgment debt that has not been stayed or set aside on appeal remains valid and enforceable for the purposes of a winding-up petition. A winding-up court is not the proper forum to re-open or re-examine the merits of the underlying judgment. This Court will not go behind the said judgment (see: Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd [2010] 2 MLRA 411). The validity of the said judgment cannot be challenged at the hearing of this winding-up petition in the absence of evidence that it was procured by fraud or collusion, and no such evidence exists in the present case (see: Sri Jeluda Sdn Bhd v. Pentalink Sdn Bhd [2008] 3 MLJ 692). S/N m2dc4vj1q0yJkswBzJUaXA

Furthermore, the law clearly provides that a judgment debt is an undisputed debt. In Pacific & Orient Insurance Co Bhd v Muniammah Muniandy (supra), the Court of Appeal held: “[22] The status of the judgment on the insurer under s. 96(1) of the Road Transport Act 1987 is the same with status of the said judgment on the insured earlier granted in favour of the respondent. Unless set aside or stayed by proper authority, the said judgment remains. Upon the respondent obtaining the judgment against the insured, the debt ceased to be a disputed debt. Thereafter the question whether the debt or amount due was bona fide disputed became non-issue. This is so even though the appellant had filed an appeal against the said judgment because the filing of an appeal does not have the effect of reverting the status of the judgment debt to its original status as a disputed debt before judgment was obtained. The filing of an appeal does not make a valid and enforceable judgment a disputed debt. (see: SBSK Plantations Sdn Bhd v. Dynasty Rangers (M) Sdn Bhd [2002] 2 CLJ 329). [23] In the instant case, the respondent has the right to proceed to issue a statutory notice under s. 218(2)(a) of the Companies Act 1965. S/N m2dc4vj1q0yJkswBzJUaXA Upon the expiration of the 21 days period as set out in the statutory notice and the amount claimed remaining unpaid, the debt becomes ‘due and payable’ and the appellant as the insurer is deemed to be unable to pay its debts. Consequently, the respondent acquires the status of ‘creditor’ for the purpose of winding up proceedings under s. 217(1)(h) and 218(1)(e) of the Companies Act 1965.” [emphasis added]

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 CA 2016.

In Klass Corp (M) Sdn Bhd v MKRS Management Sdn Bhd (supra), the High Court 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 CA 2016. Unless the judgment is set aside or stayed, the debt is not open to dispute.

In Gulf Business Construction (M) Sdn Bhd v Israq Holding Sdn Bhd (supra), the Court of Appeal observed that the presumption of inability to pay arises automatically when the debtor fails to comply with a statutory demand based on a judgment debt, and that the Court is justified in granting a winding-up order. The Court of Appeal stated: S/N m2dc4vj1q0yJkswBzJUaXA “[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). 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 [1985] 1 MLJ 84).” [emphasis added]

The starting point is section 466(1) of the CA 2016. It deems a company unable to pay its debts where the company is indebted in a sum exceeding the prescribed amount, a statutory notice of demand has been served, and the company has, for 21 days, neglected to pay, secure, or compound the sum.

On the facts before me, none of these three elements was seriously in dispute. The Judgment Debt of RM2,990,172.21 plainly exceeded the prescribed threshold; the section 466 Notice was served on 23 July 2025, and its receipt was not denied; and the Respondent accepted that it did not pay, secure, or compound the sum within 21 days. The presumption of inability to pay debts under section 466(1)(a) of the CA 2016 was therefore triggered. S/N m2dc4vj1q0yJkswBzJUaXA

The real battleground, as both sides recognised, was whether the Judgment Debt is genuinely disputed so that the Respondent could displace the presumption. Having considered the submissions, I accept the Petitioner’s position that it is not. The debt is not a bare contractual claim; it is a sum due under a Judgment obtained after a full trial on the merits, at which the Respondent’s counterclaim was dismissed in its entirety. As the authorities relied on by the Petitioner establish, a judgment debt cannot be treated as disputed once judgment has been entered; any prior dispute has already been resolved by the court unless and until that judgment is stayed or set aside. Nothing on the record shows that the Judgment has been stayed or set aside. On the contrary, the Respondent’s attempt to stay execution of the Judgment was dismissed, as was its Fortuna Injunction application, which was founded on the very same disputed-debt argument now repeated before me.

I therefore accept that the mere fact of a pending appeal does not, without more, render a judgment debt disputed for the purposes of a winding-up petition. To hold otherwise would allow any judgment debtor to defeat a winding-up petition simply by filing an appeal, which cannot be right. The four questions the Respondent argued should remain outstanding, namely the effect of the 28 May 2021 offer, the correct characterisation of the tenancy, the application of the Covid-19 Act, and unjust enrichment, were all matters that were, or ought to have been, ventilated and determined at the trial that led to the Judgment. They are not new disputes about the existence of the debt; they S/N m2dc4vj1q0yJkswBzJUaXA are disagreements with the outcome of the trial, which is properly the subject matter of the Appeal, not of this winding-up petition. A winding-up court does not sit as an appellate forum, and it would not be appropriate for me to re-open findings already made after a full trial.

On insolvency, the Respondent failed to demonstrate any evidence of its ability to pay the Judgment Debt as it falls due. A bare assertion of solvency, without more, does not rebut the statutory presumption. Nor am I satisfied that any special or exceptional circumstances exist to justify withholding a winding-up order. The Respondent’s complaint that the petition is oppressive or amounts to arm-twisting is not, on the material before me, made out. The Petitioner is simply seeking to enforce a valid and subsisting judgment through the ordinary statutory process, having already succeeded in resisting the Respondent’s stay of execution and Fortuna Injunction applications on the same underlying premise. The commercial consequences of a winding-up order for the Respondent, even if real, do not, by themselves, furnish a ground to refuse the order where the debt is undisputed and the presumption of insolvency stands unrebutted.

The Court therefore finds 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 CA 2016. S/N m2dc4vj1q0yJkswBzJUaXA

For these reasons, I was satisfied that the Petitioner had made out its case under section 466 of the CA 2016, that the Judgment Debt is undisputed, and that the Respondent has not provided any evidence to rebut the presumption or to demonstrate that it was capable of settling the debt mentioned in the said Notice, warranting refusal of the winding-up order.

The Respondent applied under section 470(1) of the CA 2016 for the winding-up proceedings to be stayed or restrained pending final disposal of the Appeal. It repeated the background facts and the bona fide dispute argument advanced in opposing the petition, and argued that, since the debt relied upon by the Petitioner is being challenged in the Appeal, the winding-up proceedings should be stayed pending its outcome.

The Respondent relied on Homewest Sdn Bhd v Vision Returns Sdn Bhd (supra), contending that the Court of Appeal there allowed a stay of winding-up proceedings pending the disposal of a dispute over the debt and found that a pending appeal was itself an "exceptional circumstance" justifying a stay. It also relied on Team Four Sdn Bhd v Ang Kim Cheng @ Ang Teng Kok & Ors [2017] MLJU 1494 and HSBC Bank (M) Bhd v Jejak Maju Resources Sdn Bhd & Ors [2015] 10 MLJ 645, for the proposition that the possibility of contradictory findings by two courts involving the same parties is itself an exceptional circumstance warranting a stay. On this basis, the Respondent S/N m2dc4vj1q0yJkswBzJUaXA argued that the disputed debt is pending final resolution through the Appeal and that a stay ought to be granted.

The Petitioner contended that Homewest Sdn Bhd v Vision Returns Sdn Bhd (supra) is distinguishable and, in any event, does not assist the Respondent. It further contended that the case does not support the proposition that a pending appeal, without more, is a special circumstance justifying a stay. On the contrary, the Petitioner argued, the court in Homewest Sdn Bhd v Vision Returns Sdn Bhd (supra) reaffirmed that winding-up petitions should be disposed of expeditiously and that stays or lengthy adjournments should not ordinarily be granted; any limited adjournment contemplated in that case was conditional upon payment of the judgment sum into court, something the Respondent has not done here. The Petitioner also contended that Team Four Sdn Bhd v Ang Kim Cheng @ Ang Teng Kok & Ors (supra) and HSBC Bank (M) Bhd v Jejak Maju Resources Sdn Bhd & Ors (supra) are distinguishable, the former concerning a stay of a civil suit at the pre-trial stage to avoid conflicting findings, and the latter concerning a stay pending criminal proceedings; neither involved a judgment already delivered after a full trial, as is the case here.

The Petitioner further argued that it is well settled that the filing of an appeal does not operate as a stay of execution, relying on section 73 of the Courts of Judicature Act 1964 and Re Flatau Ex P Scotch Whisky Distillers Ltd (1888) 22 QBD 83. A stay S/N m2dc4vj1q0yJkswBzJUaXA is not a matter of right but rests in the court’s discretion and is to be exercised only where the applicant demonstrates special circumstances, duly particularised and supported by cogent affidavit evidence, citing Ulthera Inc & Anor v Lanopearl (Malaysia) Sdn Bhd [2018] CLJU 2035. The Petitioner further argued that the default position is that execution should proceed unless special circumstances are established, citing Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ

380.

The Petitioner argued that no special circumstances have been shown here. It relied on Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 for the principle that special circumstances must be exceptional and directly relate to the enforcement of the judgment, and on Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased) v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224 for the principle that such circumstances must be "distinctive and out of the way", and that the mere filing of an appeal, even involving a substantial sum, does not by itself amount to a special circumstance. It further relied on Lim Kok Liam & Sons Sdn Bhd v Lau Choon Wan t/a Restoran Paramount Garden and Third Party [1996] MLJU 312, where unsubstantiated assertions of hardship and inconvenience were held legally insufficient. The Petitioner contended that the Respondent’s affidavit in support disclosed nothing beyond a bare, conclusory assertion that the Appeal S/N m2dc4vj1q0yJkswBzJUaXA would be rendered nugatory, without any particulars capable of demonstrating irreparable loss.

On the issue of nugatory, the Petitioner contended that it is not presumed and must be established by cogent facts, relying on Koh Hooi Siang v Tay Yew Chong [2018] MLJU 1759. It further contended that the Respondent has advanced no facts showing that the Appeal would be rendered nugatory, and that any loss the Respondent may suffer by delivering vacant possession pending the Appeal is adequately compensable in damages, relying on Cimb Bank Berhad v Consobiz Ventures Sdn Bhd [2018] CLJU 1336. If the Respondent succeeds, the Court of Appeal retains full jurisdiction to award damages or other appropriate relief. It further relied on Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd (supra) for the proposition that mere commercial fears or business disruption do not constitute special circumstances.

Finally, the Petitioner argued that the petition is bona fide and that a stay would cause serious prejudice, as the Premises are commercial property from which the Petitioner continues to be unlawfully kept out. It relied on International Construction & Civil Engineering Sdn Bhd v Jittra Sdn Bhd & Ors [2018] MLJU 1207, for the principle that a stay of proceedings requires extremely compelling reasons and that, once an action is filed, it must proceed expeditiously; and on Walter a/p Pathrose Gomez & Ors v Sentul Raya Sdn Bhd [2005] 6 MLJ 555, for the principle that a successful litigant should not be deprived of S/N m2dc4vj1q0yJkswBzJUaXA the fruits of its judgment absent special circumstances. It submitted that the Respondent’s conduct, having unsuccessfully exhausted its stay of execution application, its Fortuna Injunction, and its application to set aside the leave to issue a writ of possession, shows that the present application is simply a further attempt to delay enforcement.

I am not satisfied that the Respondent has shown any special or exceptional circumstances justifying a stay of the winding-up proceedings pending the Appeal. It is well established, and not seriously contested, that the mere filing of an appeal does not operate as a stay of execution of a judgment. Execution and winding-up proceedings are the ordinary and natural consequence of a valid and subsisting judgment; a stay is discretionary, not automatic, and the burden lies on the applicant to demonstrate special circumstances. A pending appeal, without more, does not meet that threshold, however substantial the sum at stake.

The Respondent’s affidavit evidence before this Court goes no further than the assertion that, without a stay, the Appeal would be rendered nugatory and academic, causing manifest irreparable injustice. That is a conclusory statement, not a particularised showing of irreparable harm. No facts were put forward to explain why any loss arising from delivery of vacant possession, or from the winding-up itself, could not be compensated in damages should the Respondent ultimately succeed on appeal. Nor was there any evidence of the S/N m2dc4vj1q0yJkswBzJUaXA Respondent’s solvency or of its ability to satisfy the Judgment Debt, whether by payment into court or otherwise, which might have supported a more limited form of relief.

I have considered the Respondent’s reliance on Homewest Sdn Bhd v Vision Returns Sdn Bhd (supra), Team Four Sdn Bhd v Ang Kim Cheng @ Ang Teng Kok & Ors (supra) and HSBC Bank (M) Bhd v Jejak Maju Resources Sdn Bhd & Ors (supra), but I accept the Petitioner’s submissions distinguishing those cases. The circumstances in those cases are materially different from the present case, where the debt has already been conclusively established after a full trial, and where the Respondent’s own attempts to stay execution and to obtain a Fortuna Injunction on the identical disputed-debt premise have already failed.

Considering the matter in the round, I was not satisfied that the Respondent had shown any special circumstances under the general law relating to stays that would justify staying the winding-up proceedings pending the Appeal. Accordingly, the application in Enclosure 11 was dismissed.

For the reasons set out above, I allowed the winding-up petition in Enclosure 1, with costs of RM8000.00 to the Petitioner. The Respondent is ordered to be wound up. The Official Receiver is appointed as the Liquidator. Accordingly, I dismissed the S/N m2dc4vj1q0yJkswBzJUaXA Respondent’s stay application in Enclosure 11, with costs of RM3000.00 to the Petitioner. Dated 31 July 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA COMMERCIAL 10 (INSOLVENCY 1) KUALA LUMPUR To the parties’ solicitors: For the Petitioner : Chong Tze Lin & Teoh Jing Jie (Messrs Chong Tze Lin & Partners) For the Respondent : Ang Jia Hern (Messrs Ang & Lim Partnership) S/N m2dc4vj1q0yJkswBzJUaXA