Rugayah binti Abd. Malik v Dream Wood Design Sdn Bhd (28NCC-388-06/2017)

that Dream Wood Design Sdn Bhd be wound up by Court 35 under the provisions of CA 2016;

(ii) that the Official Receiver be appointed as the Liquidator of the Company; and 2

(iii) that the costs and incidental to the winding-up be paid out 5 of the assets of the Company. [2] The Court has considered the Written cum oral submission of the parties. The Court’s findings include the following: 10 [3] The Statutory Notice issued by the Petitioner pursuant to s.465(1)(e) of the Companies Act 2015 is based on a judgment obtained after full trial against the Respondent and one Gagasan Eksklusif Sdn Bhd in KLHC Suit No:22NCC-361-11/2015 dated 13/2/2017 for the sum of - 15

RM1,969,229.17 together with 5% interest calculated annually from 16/12/2015 until the date of full and final settlement, to be paid to the Petitioner;

(ii) Cost of RM15,000.00 together with allocator fees (RM600.00) to be paid to the Petitioner. 20 (‘the Judgment’) [4] The Respondent had filed an appeal to the Court of Appeal vide Civil Appeal No.W-02(NCC)-468-03/2017 and the said appeal is currently pending. 25 [5] On 17/5/2017, pursuant to s.465(1)(e) of the CA 2016, the Petitioner through her solicitors, Messrs Guok Partnership, served a statutory demand dated 16/5/2017 on the Respondent at its registered address, calling upon the Respondent to make payment of 30 RM2,124,563.51 (‘the Debt’) being the amount due and owing to the Petitioner as at 16/5/2017 pursuant to the Judgment. 3 [6] A period of 21 days has lapsed since the said statutory demand 5 was served on the Respondent but the Respondent has failed and/or neglected to satisfy the said sum or any part thereof or to make any offer to the Petitioner to secure or to compound thereto. [7] Essentially the Respondent opposes the Petition alleging that 10 there are still arrears of payment to be paid by the Government of Malaysia in relation to the subject matter of the Judgment. I agree with the learned Counsel for the Petitioner that the aforesaid issue is irrelevant in this winding up proceeding and it should have been raised and contested during the trial. The winding up Court is not the proper 15 forum to decide on the validity of the Respondent’s claim when final judgment has been procured by the Petitioner. I am of the view the Respondent has not established that the debt is bona fide disputed. I agree with the view expressed by the learned Judge in Bank Utama

(M) Bhd v GKM Amal Bhd [2000] 5 MLJ 657 at Held (2) - 20 “A disputed debt in the context of a winding-up petition is a debt in respect of which it is shown, with grounds supported by evidence, that there is a bona fide dispute … The judgment is good until it is set aside on appeal, and it is enforceable unless a stay has been granted. The fact that the debtor has lodged an appeal against the judgment merely means that he 25 still disputes the debt but does not establish that the debt is bona fide disputed”. [8] Since I find that the service of the Statutory Notice is proper and good service, the failure of the Respondent to pay its debt within 21 30 days from the date of receipt of the said Notice means the presumption under s.466(1) CA 2016 is invoked in that the Respondent is unable to pay its debt. Following the Court of Appeal case of Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd [2010] 5 MLJ 34 at 41[11] “This presumption is, however, rebuttable. The onus shifts 35 onto the company to show that it is able to pay the debt.” 4 5 [9] I find the Respondent did not canvas the issue of commercial solvency or inability to pay its debt in its Affidavit in Opposition. The Respondent is precluded from raising it now. Since there is no evidence of solvency adduced by the Respondent, in my judgment the Respondent has failed to rebut the presumption that it unable to pay 10 its debts. [10] In the circumstances I accordingly allow in respect of the Petitioner’s Winding-Up Petition, O.I.T of prayers (i), (ii) and (iii), costs of RM5,000.00 (subject to allocatur) to be paid by the Liquidator out of 15 the assets of Dream Wood Design Sdn. Bhd. to the Petitioner. Dated: 4/10/2017 20 SGD. (LAU BEE LAN) Judge 25 Counsel for the Petitioner: Encik Foo Wen Cong Messrs Guok Partnership Advocates & Solicitors 30 B-3A-3A, Gateway Kiaramas Corporate Suites No. 1, Jalan Desa Kiara Mont Kiara 50480 Kuala Lumpur 35 5 5 Counsel for the Respondent: Encik Muhammad Zaim Azfar bin Jalaludin Messrs Zaim & Co. 10 Advocates & Solicitors 41-1A, Tingkat 1, Jalan 2