R. Shanti for the Petitioner [Messrs Ze Yi & Kee] v Hong Kai Sheng and Loo Man Keith for the Respondent [Messrs Peter Ling & Van Geyzel (WA-28NCC-248-03/2022)

In the Petition dated 28.3.2022 at Enclosure 1 (Petition), the Petitioner had applied to wind up the Respondent company pursuant 2 to section 465 (1)(e) of the Companies Act 2016 as the Respondent was indebted to the Petitioner for the amount of RM7,282,071.71 (Sums Owed) pursuant to a Judgment dated 25.3.2021 (Judgment).

It was stated in the Petition that further to a Statutory Notice dated 13.12.2021 (Statutory Notice) served on the Respondent by hand at its registered address, the Respondent had failed to settle the Sums Owed upon expiry of the 21 days notice in the Statutory Notice and thus the Respondent is deemed to be insolvent for its failure to comply with the Statutory Notice and that it ought to be wound up.

The Respondent had opposed the Petition via its Affidavit In Opposition affirmed on 23.5.2022 (AIO) at enclosure 5 wherein it was submitted amongst others that:-

the case was not encapsulated within section 465 and 466 of the Companies Act 2016

(ii) there is a bona fide dispute reading the debt

(iii) the Petition is an abuse of process

(iv) the Respondent is solvent Hearing of Petition

After hearing the respective learned counsels on 28.9.2022, I had allowed Enclosure 1 to wind up the Respondent. 3

The Respondent being dissatisfied with my decision has henceforth appealed against the same and herewith are my grounds.

I have considered the fact that the Judgment obtained is a valid and binding judgment which has yet to set aside or stayed. In the circumstances, the Judgement must be obeyed, see the decision of the Court of Appeal in Pacific & Orient Insurance v Munniamah Muniandy [2011] 1 CLJ 947 where Ramly Ali JCA (as he then was) stated that “A valid and enforceable judgment of court as in the present case, (unless set aside or stayed) cannot be considered a disputed debt. The law is settled on this point”

In addressing the Respondent’s contention that it was not served with the Statutory Notice, I have found that the Affidavit of Service at exhibit GWK-3 enclosure 6 that the deponent therein had affirmed that the same was served on the Respondent at the Respondent’s registered address in 13.12.2021. It is not disputed by the Respondent anywhere before this Court that the said address where the Statutory Notice was served was the Respondent’s registered address. 4

There is also no evidence whatsoever of the Respondent’s solvency before this Court save for its submission that the Respondent had attempted to settle the Petitioner’s claim but was unable to do so as its bank account was frozen and the contention that it is the owner of the 168 units of properties in Pandan Safari Lagoon which shows that its total assets far exceeds the debt alleged by the Petitioner, which I find is unproven.

The ability of the Respondent to settle its current demands goes to the solvency of the Respondent, see Lafarge Concrete Sdn Bhd v Gold Trend Builders Sdn Bhd [2012] 6 MLJ 817. In the circumstances this Court finds that Respondent is thus deemed to be insolvent for its failure to comply with the Statutory Notice as well as its failure to provide any evidence of its solvency to this Court.

This Court has thus found that there is no bona fide dispute as to the Sums Owed i.e the debt, or that the Petition was filed for a collateral purpose or is an abuse of process as claimed by the Respondent.

It is settled law that the just and equitable ground under section 465

(1)(e) of the Companies Act 2016 will vary from case to case as per the Court of Appeal in Gulf Business Construction Sdn Bhd v Israq Holding Sdn Bhd [2010] 5 MLJ 34. As the Respondent had not shown that it is able to settle the Sums Owing, the Respondent can be wound up on this ground alone.

Wherefore, this Court has granted order in terms for paragraph 13 prayers a, b and c, costs in the sum of RM25,000. 5 Dated: 28th day of September 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: R. Shanti for the Petitioner [Messrs Ze Yi & Kee] Hong Kai Sheng and Loo Man Keith for the Respondent [Messrs Peter Ling & Van Geyzel]