Standard Chartered Bank Malaysia Berhad v Yn Serting Sdn. Bhd. (MA-28NCC-43-11/2025)

This was a creditor's winding-up petition presented by Standard Chartered Bank Malaysia Berhad ("the Petitioner") to wind up YN Serting Sdn Bhd ("the Company") under section 465(1)(e) read with section 466(1)(a) of the Companies Act 2016 ("the Act"), on the ground that the Company is unable to pay its debts. The petition was founded upon a subsisting judgment debt and upon a statutory notice of demand that, on the evidence, remained unsatisfied.

The petition was fixed for hearing on 9 February 2026 and ultimately came on for hearing before me on 6 May 2026. The Petitioner was represented by counsel, who moved the petition. The Company neither filed any affidavit in opposition nor entered any appearance, notwithstanding due service. No written submissions were filed and no authorities were cited to me; the petition was determined wholly upon the cause papers. Having scrutinised the petition, the supporting affidavits, the affidavits of service and the exhibits, I was satisfied that the statutory ground had been made out, that the procedural requirements of the Companies (Winding-Up) Rules 1972 had been complied with, and that there was no proper reason to decline the relief sought. I allowed the petition and made an order in terms.

These are my grounds. They are confined to the matters necessary for the disposal of the petition, namely the standing of the Petitioner and the existence of the debt; the service of, and non-compliance with, the section 466 notice; the verification, service and advertisement of the petition; whether any bona fide dispute or other answer was raised; and whether the order ought, in the exercise of discretion, to have been made.

The Petitioner is a licensed banking institution. The Company is a private company limited by shares, incorporated in Malaysia on 27 October 2016. According to the company search exhibited to the petition, its registered office is at No. 8-1, Jalan PPM 12, Plaza Pandan Malim, 75250 Melaka, and its business address is at No. 44-4-2, Cheras Business Centre, Jalan 2/101C, Cheras, 56100 Kuala Lumpur. Its sole director and shareholder is one Muhammad Azry bin Abdullah, who holds the entirety of its issued share capital. The nature of its business is recorded as the wholesale of construction and civil engineering machinery and equipment.

The search further disclosed that the Company is an exempt private company that had lodged no accounts since the financial year ended 31 December 2022, and that there subsists against it an unsatisfied charge created on 28 July 2023 in favour of AmBank (M) Berhad. I return to the significance of these matters below. C. THE JUDGMENT DEBT AND THE STATE OF ACCOUNT

The indebtedness has its origin in banking facilities granted by the Petitioner to the Company. By a judgment in default of appearance dated 4 February 2025, entered in the Sessions Court at Kuala Lumpur in Suit No. WA-B52NCC-4-01/2025 against the Company and its director Muhammad Azry bin Abdullah jointly and severally, it was adjudged that the defendants pay the Petitioner:

the sum of RM410,326.14 as at 2 January 2025;

interest at the rate of 13.25% per annum on RM410,326.14 (expressed by reference to the Bank's Base Lending Rate, then 6.70% per annum, and subject to variation from time to time) from 3 January 2025 until full settlement;

default interest at the rate of 1% per annum on the arrears of RM34,710.89, calculated on a daily rest basis, from 3 January 2025 until full settlement; and

costs of RM1,000.00. [7] The Judgment has not been set aside, varied, stayed or appealed against. It remains a regular, subsisting and enforceable judgment of a court of competent jurisdiction. After crediting the part-payments received, the sum outstanding under the Judgment stood at RM380,628.98 as at 16 October 2025, computed as the judgment sum of RM410,326.14, plus accrued interest of RM38,065.36, plus costs of RM1,000.00 less payments of RM68,762.52, as borne out by the Petitioner's statement of account dated 16 October 2025 (exhibit "BNKS-2" to the petition). [8] That outstanding sum of RM380,628.98 is the debt pleaded in the petition. It is a liquidated sum, presently due and owing under the Judgment, and it exceeds - by a very wide margin the threshold prescribed under section 466(1)(a) of the Act, to which I shall come. D. THE STATUTORY NOTICE OF DEMAND UNDER SECTION 466 [9] By a notice of demand dated 2 July 2025 issued under sections 465(1)(e) and 466 of the Act ("the section 466 Notice", exhibit "BNKS-3" to the petition), the Petitioner's solicitors required the Company to pay the sum of RM388,905.33 due as at 20 June 2025 being the judgment sum together with accrued interest and costs, less repayments within twenty-one (21) days of service, failing which the Company would be treated as unable to pay its debts and winding-up proceedings would follow. The Notice enclosed the Judgment and the statement of account. [10] Service of the section 466 Notice was deposed to in the statutory declaration (Surat Akuan) of Muhd Firdaus bin Muhamad Fadzil affirmed on 24 October 2025 (exhibit "BNKS- 4" to the petition). The Notice was served:

by registered post on 2 July 2025, addressed both to the registered office at Plaza Pandan Malim and to the business address at Cheras; and

by hand on 3 July 2025 - at the registered office, where a person holding out as the Company's secretary acknowledged receipt; and at the business address, where the premises were found locked and the Notice was left at the premises. [11] What matters for the purposes of section 466(1)(a) is that the demand was served by leaving it at the Company's registered office, which was done. The Company did not, within twenty-one days of service or at all, pay, secure or compound the sum demanded to the reasonable satisfaction of the Petitioner. No payment whatsoever was shown to have been received after service of the Notice. E. PRESENTATION, VERIFICATION, SERVICE AND ADVERTISEMENT OF THE PETITION [12] The petition was presented on 24 November 2025 (Enclosure 1) and was verified by the affidavit of Bryan Ng Kah Sing, the Petitioner's authorised senior collections manager, affirmed on 27 November 2025 (Enclosure 4). That affidavit deposed that the deponent was duly authorised to verify the petition and that the statements in it were true to his knowledge. That sufficed for the purpose of verification. The petition was fixed for hearing on 9 February 2026 by order of the Deputy Registrar endorsed on the petition. [13] Service of the petition and the verifying affidavit was deposed to in the affidavit of service of Asdin bin Udin affirmed on 30 December 2025 (Enclosure 5). On the evidence there set out, the petition and verifying affidavit were:

served by registered post on 9 December 2025, addressed to both the registered office and the business address of the Company;

served by hand at the registered office on 19 December 2025, where T & E Corporate Advisory Sdn Bhd,(the Company secretary), acknowledged receipt on behalf of the Company;

the subject of an attempt at personal service at the business address at Cheras, where the premises were found locked and a copy was left at the premises; and

served on the Companies Commission of Malaysia on 10 December 2025 and on the Director General of Insolvency, Melaka Branch, on 19 December 2025. [14] Compliance with the requirements as to advertisement was established by the affidavit under Rule 32 of the Companies (Winding-Up) Rules 1972 affirmed by Amani Syafiqah binti Abdul Malik on 30 December 2025 and by the Memorandum of Advertisement dated 31 December 2025 (Enclosure 7). The petition was advertised in the New Straits Times on 15 and 16 December 2025, in The Star on 15 and 16 December 2025, and was published in the Warta Kerajaan Persekutuan (Federal Government Gazette) on 25 December 2025 as Notification No. 49430. The advertisements were exhibited as "AMN-1" to "AMN-5". [15] The prescribed deposit of RM3,000.00 was paid to the Director General of Insolvency on 12 November 2025. A certificate under Rule 32 of the Companies (Winding-Up) Rules 1972, dated 5 January 2026, certified compliance with that Rule. The list of persons intending to appear at the hearing recorded no creditor, contributory, supporter or opponent who had given notice of intention to attend; the time fixed by the advertisement for the giving of such notice expired at 12 noon on 6 February 2026. [16] The Petitioner did not nominate a private liquidator but applied, pursuant to Rule 31(3) of the Companies (Winding-Up) Rules 1972, for the Director General of Insolvency (the Official Receiver) to be appointed liquidator. Finally, the complete set of cause papers was served on the Director General of Insolvency, Melaka Branch, on 28 January 2026 in advance of the hearing, as deposed to in the further affidavit of service of Asdin bin Udin affirmed on 29 January 2026 (Enclosure 10). F. THE ABSENCE OF OPPOSITION [17] The Company filed no affidavit in opposition. No application was made at any stage to restrain the presentation or advertisement of the petition, whether by way of a Fortuna injunction or otherwise. At the hearing, no one appeared for the Company notwithstanding due service. The petition therefore proceeded, unopposed, and was determined upon the cause papers namely the petition and its exhibits, the verifying affidavit, the affidavits of service, the affidavit and certificate under Rule 32, and the Memorandum of Advertisement. [18] I reminded myself, however, that the absence of opposition does not relieve the Court of its duty to scrutinise the petition. A winding-up order is not made as of course, or by way of default judgment. The Court must still be satisfied that a ground under section 465(1) has been established and that the procedural prerequisites have been observed before the discretionary power to wind up is exercised. I approached the petition on that footing. G. THE ISSUES FOR DETERMINATION [19] The issues were these: first, whether the Petitioner had standing as a creditor and had proved a debt due from the Company; secondly, whether the section 466 Notice had been duly served and had remained unsatisfied, so that the Company was deemed unable to pay its debts; thirdly, whether the petition had been properly verified, served and advertised in accordance with the winding-up procedure; and fourthly, whether there was any reason, in law or in the exercise of discretion, to refuse or adjourn the order. H. THE APPLICABLE LEGAL PRINCIPLES [20] Although the petition was unopposed and no authorities were cited to me, the principles governing a creditor's winding-up petition of this kind are well settled. The court being taken to know the law, I applied them of my own motion, in the terms that follow. [21] The statutory architecture is straightforward. A creditor is among the persons entitled to present a winding-up petition: section 464(1) of the Act. A company may be wound up by the Court where it is unable to pay its debts: section 465(1)(e). The meaning of inability to pay debts is supplied by section 466. [22] Section 466(1)(a) provides that a company is deemed unable to pay its debts where it is indebted in a sum exceeding the amount prescribed by the Minister; a creditor has served a written demand at the registered office requiring payment of the sum due; and the company has, for twenty-one days after service, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor. By the Prescription of Amount of Indebtedness of Company under Paragraph 466(1)(a) (Gazette Notification No. 4159/2021), the prescribed amount, with effect from 1 April 2021, is a sum exceeding RM50,000.00. [23] Once those elements are made out, a statutory presumption of inability to pay debts arises, which it falls to the company to displace. The deeming provision does not, however, oust the Court's discretion; it is one route to establishing the statutory ground, and remains open to a proper answer, such as proof of payment, a bona fide dispute on substantial grounds, a crossclaim of substance, a defect in service or procedure, or some other reason rendering an order inappropriate. [24] The presumption is not the only route. The underlying test of inability to pay debts is one of commercial insolvency - whether the company is able to meet its current liabilities as and when they fall due. As the Supreme Court held in Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1992] 1 MLJ 313, following the Privy Council in Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ 53 and adopting the passage in Buckley on the Companies Act (13th Ed) at p 460, a company may at one and the same time be insolvent and possessed of wealth; wealth locked up in assets not presently realizable does not answer the question, for if the company has not assets available to meet its current liabilities it is commercially insolvent and may be wound up. Where, as here, the petition proceeds upon a statutory demand under section 466(1)(a), it is not necessary - as it would be under section 466(1)(c) - for the petitioner to prove to the satisfaction of the court that the company is unable to pay its debts, nor for the court to take into account the company's contingent and prospective liabilities; once the statutory requirements are satisfied, a presumption of inability to pay debts arises and the burden of proving that it is able to pay its debts shifts to the company. The neglect of a statutory demand therefore does not merely furnish evidence of commercial insolvency; it gives rise, the requirements of the section being met, to the statutory presumption of it. [25] It is equally settled that winding up is not a legitimate means of enforcing a debt that is bona fide disputed on substantial grounds. Where such a dispute exists, the presentation of a petition may be restrained as an abuse of the process of the court - that being the office of the Fortuna injunction explained by the Court of Appeal in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd [2007] 3 MLJ 316 and Tan Kok Tong v Hoe Hong Trading Co Sdn Bhd [2007] 4 MLJ 355 and, where no such injunction is sought, the same dispute may be raised by way of answer to the petition itself. The threshold, in either case, is a real and substantial dispute; a bare or insubstantial denial will not do, and the ordinary American Cyanamid standard of a serious question to be tried has no application in this context. [26] The treatment of an admitted or adjudicated debt follows from the same approach. In Chip Yew Brick Works Sdn Bhd v Chang Heer Enterprise Sdn Bhd [1988] 2 MLJ 447 the Supreme Court held that, a substantial part of the debt being admitted, the company was caught by the deeming provision and the petitioner was not to be restrained from pursuing and advertising its petition; and that, even where the debt is disputed, the court is competent to receive and examine the evidence in order to determine whether the dispute is a bona fide one, that question going ultimately to the exercise of its discretion. It follows, a fortiori, that a debt reduced to a regular and subsisting judgment which has not been set aside, stayed or appealed against, and is met by no cross-claim, admits of no bona fide dispute. It is not the function of the winding-up court to sit on appeal from, or to re-try the merits of, such a judgment; the dissatisfied judgment debtor's remedy lies in setting it aside or in appeal, not in re-agitating the debt before the winding-up court. A judgment in default is not, of course, an absolute bar to every answer - a company may still resist by, for example, a bona fide cross-claim of substance - but here the Company advanced none. [27] The burden lay on the Petitioner to prove the facts bringing the case within sections 465(1)(e) and 466(1), and to show compliance with the requirements as to verification, service, advertisement and the prescribed deposit. The standard is the civil standard of the balance of probabilities. I. EVALUATION AND FINDINGS [28] Applying these principles to the material before me, I made the following findings. [29] First, standing. The Petitioner holds a judgment in default of appearance against the Company for a liquidated sum. It is plainly a creditor - indeed a judgment creditor - of the Company, and is entitled to petition under section 464(1) of the Act. Its standing was beyond question, and was not in any event challenged. [30] Secondly, an existing debt exceeding the prescribed amount. The sum of RM380,628.98 outstanding as at 16 October 2025 is a liquidated debt presently due and owing under the Judgment, and exceeds, very substantially, the prescribed threshold of RM50,000.00 under section 466(1)(a). I have not overlooked that the sum demanded in the section 466 Notice (RM388,905.33 as at 20 June 2025) is higher than the sum pleaded in the petition (RM380,628.98 as at 16 October 2025). It is settled, on the authority of Re Perusahaan Jenwatt Sdn Bhd [1990] 2 MLJ 178 - with which the Supreme Court agreed, per curiam, in Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1992] 1 MLJ 313 - that a demand stating a sum in excess of the amount actually due does not fall within the section. That principle does not assist the Company. The comparison it requires is between the amount demanded and the sum actually due as at the date of the demand. The section 466 Notice correctly stated RM388,905.33 as the sum due as at 20 June 2025; the lower figure of RM380,628.98 is the sum outstanding as at the later date of 16 October 2025, the two having been computed as at different dates upon a running account. A demand which accurately states the sum due as at its own date is not rendered bad merely because the debt is afterwards reduced. The Notice therefore neither overstated the debt as at its date nor fell outside section 466(1)(a); and on either figure the indebtedness far exceeds the statutory threshold. [31] Thirdly, no bona fide dispute. The debt is founded upon a regular and subsisting judgment which has been neither set aside, stayed, varied nor appealed. On the authority of Chip Yew Brick Works, that forecloses any contention that the debt is bona fide disputed on substantial grounds. In any event, the Company filed nothing and appeared not at all; no dispute, cross-claim or defence of any kind was placed before me. There was thus no basis on which the petition could be characterised as an abuse of process within Mobikom and Tan Kok Tong. [32] Fourthly, the statutory presumption. The section 466 Notice was served at the Company's registered office, demanded a sum well in excess of the prescribed amount, and remained wholly unsatisfied for far longer than the twenty-one days allowed. The conditions of section 466(1)(a) being satisfied, the Company was deemed unable to pay its debts, and the burden of displacing that presumption - which the Company did not attempt to discharge - fell upon it. [33] Fifthly, commercial insolvency independently shown. Quite apart from the presumption, the contemporaneous record bore out the Company's commercial insolvency. The company search disclosed nil financial figures and the non-lodgement of accounts since the financial year ended 31 December 2022 indicative of a dormant or non-trading entity - and recorded a subsisting unsatisfied charge in favour of AmBank (M) Berhad. A sustained failure to satisfy a judgment debt, even after a statutory demand, is itself telling evidence of inability to meet current liabilities as they fall due, within the meaning of Sri Hartamas. [34] Sixthly, procedural regularity. The petition was presented within time, was duly verified, and the requirements as to advertisement in two newspapers, publication in the Federal Government Gazette, payment of the prescribed deposit, and service upon the Company, the Companies Commission of Malaysia and the Director General of Insolvency were each satisfied, as borne out by Enclosures 1,4,5,7 and 10 and the affidavit and certificate under Rule 32. There was thus no procedural impediment to the making of the order. J. A DISCREPANCY IN THE COVERING CORRESPONDENCE [35] I record, for completeness, one discrepancy apparent on the file, lest it be raised hereafter. The solicitors' letters transmitting the section 466 Notice misdescribe the Petitioner's company number as "201401027391 (1103477-H)”，whereas the section 466 Notice itself - together with the petition, the affidavits and the order - correctly and consistently records it as 198401003274 (115793-P). The error is confined to the covering correspondence; the operative statutory Notice bears the correct particulars and correctly identifies both creditor and debtor. A slip of that character in a covering letter does not vitiate a Notice that is itself regular, and occasions no prejudice. I treated it as immaterial. K. THE EXERCISE OF DISCRETION AND THE ORDER MADE [36] The power to wind up under section 465(1) is discretionary. Having found the statutory ground established, I considered whether there was any countervailing reason to withhold the order. There was none. No competing interest of creditors or contributories was placed before me; no scheme or proposal for repayment was advanced; and the Company's persistent default, coupled with its non-appearance despite due service, only reinforced the conclusion that it was unable to pay its debts and ought to be wound up. The justice of the case plainly favoured the making of the order. [37] The Petitioner having declined to nominate a private liquidator and having applied under Rule 31(3) of the Companies (Winding-Up) Rules 1972, I appointed the Official Receiver as liquidator of the Company. [38] Accordingly, I allowed the petition and made an order in the following terms:

that YN Serting Sdn Bhd [Company No. 201601035993 (1206934-T)] be wound up by the Court under sections 465(1)(e) and 466(1) of the Companies Act 2016;

that the Official Receiver be appointed liquidator of the Company; and

that the Petitioner be allowed costs of RM5,000.00, subject to allocatur, to be paid out of the assets of the Company. L. CONCLUSION [39] For the reasons set out above, I was satisfied that the Petitioner had established its standing as a creditor; that the Company was indebted to it in a liquidated sum far exceeding the prescribed threshold; that a notice under section 466 had been duly served at the registered office and had remained unsatisfied for the period required; that there was no bona fide dispute on substantial grounds, nor any evidence of payment, security or compounding; that the petition had been properly verified, served and advertised; and that no procedural irregularity or other reason stood in the way of relief. The Company was therefore deemed unable to pay its debts within section 466(1)(a), and the ground under section 465(1)(e) was made out. There being no reason in law or in justice to withhold relief, I allowed the petition and granted the order in terms. Dated 6th May 2026 Amminik (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Petitioner : Puan Amani Syafiqah Binti Abdul Malik Tetuan Sidek Teoh Wong & Dennis Peguambela dan Peguamcara Tingkat 16, Menara Aras Raya, Jalan Raja Laut, 50350 Kuala Lumpur. Lawyer For Respondent : Tetuan Ariffin Haron Peguambela dan Peguamcara 5-4-19, The Promenade, Persiaran Mahsuri, Bayan Baru, 11950 Bayan Lepas, Pulau Pinang.