Phoenix Biqq Sdn Bhd v City Amoeba Sdn Bhd (WA-28NCC-860-08/2023)

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 obtained a summary judgement (“summary judgment”) against the Res on 08.07.2020 in the Kuala Lumpur Sessions Court in Civil Suit WA-B52-NCC-901-12/2019 (“Suit 901”) for the sum of RM115,687.75 plus interest and costs. This was in relation to only a part of the Petitioner’s claim.

The Respondent appealed against the summary judgment on 10.01.2023 the Kuala Lumpur High Court dismissed the Respondrent’s appeal with costs. Therefore, there was no further appeal filed. Thus, the Summary Judgment became final.

The Petitioner served a Statutory Notice on the Respondent on 28.06.2023 demanding payment of the judgment sum with interest and costs, and also costs awarded to the Petitioner in the Respondent’s appeal. The total amount claim in the Statutory Notice is RM173,924.44.

After expiry of the 21 days stated in the Statutory Notice and the Respondent’s failure to pay the judgment sum pursuant to the Summary Judgment despite numerous attempts by the Petitioner to recover the judgment sum, including the filing of garnishee proceedings, the Petitioner filed this Petition.

The Respondent’s affidavit, and particularly it’s submission in Enclosure 21 is not helpful to distill the issues which it purports to raise. However, in summary the issues raised as far as I understand are as follows: a) The Petition was filed for a collateral purpose. This is allegedly evidenced by the timing of the Petition and the Statutory Notice which was file about 3 years after the Summary Judgment. 4 b) The Petitioner’s reply was that it waited until the disposal of the Respondent’s appeal against the Summary Judgment, and meanwhile it pursued other avenues to recover the judgment sum including garnishee proceedings which was unsuccessful due to dissipation of the assets of the Respondent by it’s directors. c) On this issue I find that the Petitioner has given a satisfactory explanation for the delay. In any event delay in filing the petition is irrelevant to the issue of the Respondents failure to settle the judgment debt so long as the Summary \judgment remains valid and enforceable.

On 14.07.2021, the Petitioner filed a suit against the Directors fo the Respondents personally in BA-22NCC-79-07/2021 (“The Shah Alam Suit) under section 540 of the Companies Act 2016 (“CA 2016”). The Petitioner filed 4 interlocutory applications in the Shah Alam Suit, all of which was dismissed with costs. The Respondent in opposing this Petition contends that the objective of this Petition is to avoid having to pay costs of the interlocutory applications.

I find this submission to be misleading and without merit. The costs in the Shah Alam suit was awarded in favour of the individual directors of the Respondent, who are separate entities from the Respondent. A winding-up order against the Respondent would not assist the Petitioner to avoid paying costs to the individual directors of the Respondent. In any event the directors of the Respondent have been paid their costs from a garnishee order made absolute against the Petitioner. Therefore, this ground has been rendered academic.

The Summary Judgment obtained in Suit 901 was only in relation to part of the Petitioner’s claim against the Respondent. The balance of the Petitioners claim is pending trial. The Respondent submits that this petition is filed for a collateral purpose to enable the Petitioner to obtain judgment in the balance of the Petitioner claim’s.

The Respondent submits in paragraph 61 and 62 of its written submission that in the event the Respondent is wound up, the conduct of Suit 901 will be taken over by the Liquidator instead of the Directors of the Respondent. Thus, such a situation will deprive the Respondent the opportunity to effectively defend Suit 901 to the detriment of the Respondent.

I find the above submission to be without merit. The Liquidator is an officer of the court performing his statutory duties under the supervision of the Court. To assume that the Liquidator would not properly defend the claim in Suit 901 is totally misconceived.

For the reasons aforesaid I find the Respondent has failed to raise any bona fie dispute to the Petitioner’s claim on substantial grounds. Therefore, I allow the prayers in this Petition with costs to the Petitioner to paid out as the assets of the Respondent. Dated 07 April 2025 ……………t.t.……………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PETITIONER: GAN BOON YI SOLICITORS FOR THE PETITIONER: TETUAN RANDY CHEW & CO COUNSEL FOR THE RESPONDENT: FOO WEN CONG SOLICITORS FOR THE RESPONDENT: TETUAN FOO LEONG TAN & CHAN Legislation Referred to: ➢ Companies Act 2016 ➢ Companies (Winding-Up) Rules 1972 Decision date: 10 May 2024