Pdm Builders Sdn Bhd v Fna Builders & Services Sdn Bhd (WA-28NCC-865-09/2024)

Enclosure 1 is a Petition to wind up the Respondent pursuant to section 465(1)(e) read with section 466(1)(a) of the Companies Act 2016 (“CA 2016”). This Petition is premised on the failure by the Respondent to settle a judgment sum after the expiry of 21 days from service of a Statutory Notice under section 466(1)(a) of the Companies Act 2016 on the Respondent.

The Petitioner’s claim against the Respondent is for a sum of RM506,440.00 being the amount owing to the Petitioner for work done to prepare, organize and submit the necessary documents to enable the Respondent to submit a tender for a school project in Alor Setar Kedah.

A meeting was held between the parties on 04.04.2024 whereby the Respondent had agreed to settle the sum owing based on an agreed payback schedule, which requires the Respondent to settle the full sum owing in twenty (20) installments. S/N qFamq8AOw0h46DwrGQxPg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The Respondent failed to make any payment in accordance to the payback schedule.

The Petitioner issued a Statutory Notice pursuant to section 466 1(a) of the Companies Act 2016 (“CA 2016”) on 07.05.2024.

After the expiry of the 21 days prescribed in the notice, the Petitioner filed this petition, four (4) months later.

It is not disputed that the Petitioner filed this Petition without first getting a judgment for the sum claimed. However, it is trite law that it is not a strict requirement that the Petitioner must first obtain a judgment before filing a petition against a debtor. (see the Court of Appeal case of Lafarge Concrete (M ) Sdn Bhd v Hold Trend Builders Sdn Bhd

6 MLJ 817). THE RESPONDENT’S SUBMISSION IN OPPOSITON TO THE PETITION [8] In paragraph 8 of its submission states as follows: “On 05.01.2024, PDM sent a whatsapp message demanding RM506,440.00 which is 4% of the tender award amount as their service fee. FNA denied any agreement to this demand as there S/N qFamq8AOw0h46DwrGQxPg was no agreement regarding such payment. Futhermore, the amount demanded was considered excessive as the work done by PDM did not justify such a sum” [9] The above submission by the Respondent is an implied admission that the Petitioner did carry out the works for the benefit of the Respondent. The submission above further implies that the Petitioner went ahead to the work without any agreement on their fee. I find this submission by the Respondent to be highly improbable. No business person would commence and complete the work without at least an agreement on the amount of fee to be paid for the services. [10] The Respondent submits at paragraph 12 of Enclosure 20, that a representative of the Petitioner sent a whatsapp message to the Respondent attaching a PDF file containing the “payback schedule” but the Respondent’s representative could not open the PDF file. I find it improbable that the Respondent representative did not contact the Petitioner to request that they send to him a new attachment that could be downloaded. [11] In any event, I find that there is a clear and unequivocal admission by the Respondent in Exhibit P-3 of Enclosure 1, where the Respondent admitted that it had agreed during the meeting held on 04.04.2024 that it will pay the Petitioner based on the “FNA Payback Schedule” and it clearly stated “we could like to clarify that we agreed on the fee and S/N qFamq8AOw0h46DwrGQxPg schedule but not on the PD cheques (Enclosure 1 Exhibit P-3 page 26). Therefore, the Respondent clearly only disagreed on giving the post-dated cheques and not on the amount owing or the payment schedule. [12] Therefore I find all the grounds given by the Respondent, in particular that this petition is evidence of mala fide on the part of the Petitioner is without any merits. [13] Since there is a clear admission of the debt which the Respondent is unable to rebut on a balance of probability, I find that the Respondent has failed to raise any bona fide dispute on substantial grounds against the Petitioner’s claim in the Petition. [14] For the reason aforesaid I allow the Petition and make the orders prayed for in the Petition with costs to the Petitioner to be paid out of the assets of the Respondent. Dated 07 April 2025 ……………t.t.……………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur S/N qFamq8AOw0h46DwrGQxPg COUNSEL FOR THE PETITIONER: WONG SHENG WEI SOLICITORS FOR THE PETITIONER: TETUAN KHENG HOE & LEE YUEN COUNSEL FOR THE RESPONDENT: IRWIN LO AND YI ZHENG SOLICITORS FOR THE RESPONDENT: TETUAN LO CHAMBERS Cases Referred to: ➢ Lafarge Concrete (M) Sdn Bhd v Hold Trend Builders Sdn Bhd (2012) 6 MLJ Legislation Referred to: ➢ Companies Act 2016 ➢ Companies (Winding-Up) Rules 1972 Decision date: 10 January 2025 S/N qFamq8AOw0h46DwrGQxPg