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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA WINDING UP PETITION NO: WA-28NCC-1029-11/2024 BETWEEN TRILLION OSCAR SDN BHD PETITIONER AND TIMUR ENTERPRISE SDN BHD RESPONDENT GROUNDS OF DECISION A.
WA-28NCC-1029-11/2024
High Court of Malaysia27 Mar 2025
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Citations and treatment detected automatically from later judgments and the authorities this decision relies on.
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Earlier cases and laws this decision relies on
“i) Right to Intervene 12. It must be remembered that the Petition before this Court is a Petition to Wind-Up the Respondent, Timur Enterprises Sdn Bhd and not Trillion Oscar, under Section 465 of the Companies Act 2016.”
“(f) in the case of a company which is a licensed institution under the Financial Services Act 2013 or the Islamic Financial Services Act 2013 and which is not a member institution under the Malaysia Deposit Insurance Corporation Act 2011 [Act 720], the Central Bank of Malaysia;”
“(f) in the case of a company which is a licensed institution under the Financial Services Act 2013 or the Islamic Financial Services Act 2013 and which is not a member institution under the Malaysia Deposit Insurance Corporation Act 2011 [Act 720], the Central Bank of Malaysia;”
“Q **Note : Serial number will be used to verify the originality of this document via eFILING portal I am therefore left with s. 25(2) read together with paragraph 11 of the Schedule of the Courts of Judicature Act 1964 which is a discretionary power that must be exercised judiciously. [21] As acknowledged by both parti”
“(f) in the case of a company which is a licensed institution under the Financial Services Act 2013 or the Islamic Financial Services Act 2013 and which is not a member institution under the Malaysia Deposit Insurance Corporation Act 2011 [Act 720], the Central Bank of Malaysia;”
“15. Financial interest in the subject matter of a claim is not sufficient. He or she must show that he has a legal interest. I refer to Lee Meow Lim v. Lee Meow Nyin [1989] CLJU 188; [1990] 3 MLJ 123, Soo Hong & Leong Kew Moi & Ors v. United Malayan Banking Corp Bhd & Anor [1997] 2 CLJ 548 and Dato' Suhaimi bin Ibrahim”
“in Ibrahim & Ors v. Konsortium S/N sfAi7/7tlEGVpulgueSGbQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Lapangan Terjaya Sdn Bhd and other appeals [2013] CLJU 1308; [2014] 4 MLJ 419.”
“020] CLJU 569, Laman Kejora Sdn Bhd v. Ibai Golf & Country Club Bhd [2019] CLJU 2162 and the Court of Appeal decision in International Construction & Civil Engineering Sdn Bhd v. Jittra Sdn Bhd & Ors [2018] CLJU 1252 and Maril-Rionebel”
“28. Also refer to Government of Malaysia v. Pembangunan Mesra Sdn Bhd [2018] MLJU 679 where Lim Choong Fong J held: - “[20] As to the source of my power, I am doubtful that I could entertain the Application pursuant to s. 470 of the Companies act which is pari materia with s. 222 of t”
“not fall within the category of cases justifying the said stay. Refer to Hong Leong Bank Berhad v. B-Mathavon Stores (M) Sdn Bhd [2020] CLJU 569, Laman Kejora Sdn Bhd v. Ibai Golf & Country Club Bhd [2019] CLJU 2162 and the Court of Appeal decision in International Construction & Civil Engineering Sdn Bhd v. Jittra Sdn”
“e internally within Trillion Oscar Sdn Bhd. I find that those facts do not fall within the category of cases justifying the said stay. Refer to Hong Leong Bank Berhad v. B-Mathavon Stores (M) Sdn Bhd [2020] CLJU 569, Laman Kejora Sdn Bhd v. Ibai Golf & Country Club Bhd [2019] CLJU 2162 and the Court of Appeal decision”
“29. I also refer to Lion Pacific Sdn Bhd v. Pestech Technology Sdn Bhd [2021] MLJU 1399: - “…Had a stay been granted, the debt is deemed a disputed debt, justifying the grant of a Fortuna injunction. (See: Sanjung Suria Sdn Bhd v PLB-KH Bina Sdn Bhd [2014] 7 MLJ 1). As matters stand, th”
“27. I make reference to the test laid down by Ong Chee Kwan J in Public Bank Berhad v. Umapagan K Ampikaipakan & Ors [2025] CLJU 510: - “[38] The Court's power to grant a stay of proceedings is derived from its inherent jurisdiction under Order 92 Rule 4 of the Rules of Court 2012 ("ROC 2012"). It is a discretion that”
“a party to intervene in any proceedings it must be shown that he or she has a legal interest in the subject matter of the claim. The test is laid down in Pegang Mining Company Ltd v. Choong Sam & Ors [1968] CLJU 96 as follows: - S/N sfAi7/7tlEGVpulgueSGbQ **Note : Serial number will be used to verify the originality of”
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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA WINDING UP PETITION NO: WA-28NCC-1029-11/2024 BETWEEN TRILLION OSCAR SDN BHD PETITIONER AND TIMUR ENTERPRISE SDN BHD RESPONDENT GROUNDS OF DECISION A.
1
This Court decided to hear the following enclosures on the 27-3- 2025: -
i
Enclosure 15 – The application by Su Ming Jiun to be added as an intervener in this application. He also seeks to stay these proceedings pending the claim filed by him in the Writ Summons No: BA-22NCC-153-12/2022. S/N sfAi7/7tlEGVpulgueSGbQ
II
(ii) Enclosure 1 – Petition to Wind-Up the Respondent based on the Winding Up Notice issued and the Judgment in the Civil Suit No: WA-22NCC-681-09/2023 dated 10-7-2024. B. Decision of this Court 2. This Court found that the Applicant / Proposed Intervener did not have any locus standi to appear in these proceedings to object to the application to wind-up the Respondent. Therefore, the application was dismissed with costs.
3
This Court also found that as the Petitioner has shown that the Respondent is insolvent based on the failure to comply with the demand issued in the statutory notice as well as the failure to pay the judgment sums claimed, the said Respondent should be wound up. C. Reasoning for dismissing Enclosure 15 – Intervention and Stay of Proceedings Application to Intervene S/N sfAi7/7tlEGVpulgueSGbQ Facts raised to justify right to intervene 4. Su Ming Jiun is a contributor or shareholder of the Petitioner. He is not a contributor or shareholder of the Respondent.
5
The said Su Ming Jiun had obtained leave from the High Court in Shah Alam to institute a derivative action against Lim Aik Gee (a shareholder and a deponent of the affidavit in these proceedings for the Petitioner).
6
Thereafter, Su Ming Jiun had instituted proceedings on behalf of Trillion Oscar (the Petitioner) against Lim Aik Gee in the Civil Suit No. BA-
7
The claim against Lim Aik Gee is summarized as follows: -
i
That allegedly Lim Aik Gee had siphoned out from the coffers of Trillion Oscar the sum of RM 2, 555,000.00.
II
(ii) He had breached his fiduciary duties to the company by siphoning out these monies. S/N sfAi7/7tlEGVpulgueSGbQ
III
(iii) Had wrongly issued shares to the sum of 47,349 in the company for himself and increased his control to 96.4% of the shares in the company. 8 The reliefs sought in the suit against Lim Aik Gee are as follows: -
i
A declaration that the said Lim Aik Gee had breached his duties to the company.
II
(ii) A declaration that the sums or the proceeds of the said sums of RM
2
2.555 million are traced
III
(iii) That the said Lim Aik Gee be made responsible and pay to Trillion Oscar the sum of RM 2.555 million.
IV
(iv) General Damages and Exemplary Damages.
9
On 11-1-2024, Dr Choong Yeow Choy JC, gave the following interlocutory injunction against the said Lim Aik Gee: -
a
Suatu injuksi interim bahawa Defendan sama ada dengan sendirinya, ejen-ejen, pekhidmat-pekhidmat, pekerja-pekerja, atau sebaliknya bagaimanapun dihalang daripada berurusan dengan atau selainnya melupuskan aset, stok, inventori dan wang dalam akaun Plaintif (termasuk bank akaun CIMB Plaintif) melainkan dan kecuali untuk tujuan S/N sfAi7/7tlEGVpulgueSGbQ pembayaran yang dibuat dalam perjalanan biasa perniagaan (in the ordinary course of business) Plaintif sementara menunggu tindakan ini diselesaikan dibenarkan;
b
Suatu injuksi interim bahawa Defendan sama ada dengan sendirinya, ejen-ejen, pekhidmat-pekhidmat, pekerja-pekerja, atau sebaliknya bagaimanapun dihalang daripada mengalih keluar atau memusnahkan mana-mana buku, rekod kewangan Plaintif sementara menunggu pelupusan tindakan ini dibenarkan;
c
Suatu injuksi interim bahawa Defendan sama ada dengan sendirinya, ejen-ejen, pekhidmat-pekhidmat, pekerja-pekerja atau sebaliknya bagaimanapun dihalang daripada dipecat atau menyebabkan pemecatan Su Ming Jiun (No. K/P: 781026-10-5527) daripada pengurusan Plaintif dibenarkan;
d
Satu perintah injuksi interim bahawa Defendan sama ada dengan sendirinya, ejen-ejen, pekhidmat-pekhidmat, pekerja-pekerja atau sebaliknya untuk memberikan maklumat pembayaran ke akaun Plaintif terhadap penerbitan 47,349.00 saham-saham Baharu Plaintif atas nama Defendan dan anak Defendan, Lim Wai Keong dibenarkan. S/N sfAi7/7tlEGVpulgueSGbQ
10
There is no order made to stop the said Lim Aik Gee from representing the said Trillion Oscar or from affirming any affidavit on behalf of the company.
11
The Petitioner has also produced a copy of the Board of Directors resolution dated 19-6-2024 approving the commencement of all proceedings against the Respondent.
i
Right to Intervene 12. It must be remembered that the Petition before this Court is a Petition to Wind-Up the Respondent, Timur Enterprises Sdn Bhd and not Trillion Oscar, under Section 465 of the Companies Act 2016.
13
It is trite law that for a party to intervene in any proceedings it must be shown that he or she has a legal interest in the subject matter of the claim. The test is laid down in Pegang Mining Company Ltd v. Choong Sam & Ors [1968] CLJU 96 as follows: - S/N sfAi7/7tlEGVpulgueSGbQ "It has been sometimes said as in Moser v. Marsden [1892] 1 Ch 487 and Re LG Farbenindustrie AG [1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between "legal" and "commercial" interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"
14
I also refer to Dr Lourdes Dava Raj Curuz Durai Raj v. Dr Milton Lum Siew Wah & Anor [2020] 9 CLJ 192.
15
Financial interest in the subject matter of a claim is not sufficient. He or she must show that he has a legal interest. I refer to Lee Meow Lim v. Lee Meow Nyin [1989] CLJU 188; [1990] 3 MLJ 123, Soo Hong & Leong Kew Moi & Ors v. United Malayan Banking Corp Bhd & Anor [1997] 2 CLJ 548 and Dato' Suhaimi bin Ibrahim & Ors v. Konsortium S/N sfAi7/7tlEGVpulgueSGbQ Lapangan Terjaya Sdn Bhd and other appeals [2013] CLJU 1308; [2014] 4 MLJ 419.
16
I have also taken into consideration Rule 28 to Rule 30 of the Companies (Winding-Up) Rules 1972 which allows for any person who wishes to appear in the proceedings to file a notice of intention to appear within the frame provided, and file an affidavit in response to the said Petition. For ease of reference the said provisos are reproduced below: - “28. Notice of intention to appear
1
Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his solicitor notice of his intention. The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00 o'clock noon of the day previous to the day appointed for the hearing of the petition.
2
The notice may be in Form 8 with such variations as circumstances may require. S/N sfAi7/7tlEGVpulgueSGbQ
3
A person who has failed to comply with this rule shall not, without special leave of the Court, be allowed to appear on the hearing of the petition.
29
List of persons intending to appear
1
The petitioner or his solicitor shall prepare a list of the names and addresses of the persons who have given notice of their intention to appear in Form 9 on the hearing of the petition and of their respective solicitors.
2
On the day appointed for hearing the petition a fair copy of the list or if no notice of intention to appear has been given, a statement to the effect shall be handed by the petitioner or his solicitor to the Court prior to the hearing of the petition.
30
Affidavits opposing the petition and affidavits in reply
1
Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition. S/N sfAi7/7tlEGVpulgueSGbQ
2
Any affidavit in reply to an affidavit filed in opposition to a petition (including a further affidavit in support of any of the facts alleged in the petition) shall be filed within three days of the date of service on the petitioner of the affidavit in opposition and a copy of the affidavit in reply shall be forthwith served on the opposing petitioner or his solicitor.”
17
Su Ming Jiun’s solicitors filed the notice of appearance as required by the above rules in Enclosure 16.
18
Therefore, Su Ming Jiun is entitled to appear to oppose the said application to Wind-Up the Respondent. He does not, however, have a right to intervene in these proceedings and to seek a stay of these proceedings. Despite having the right to appear and object to the said Petition, he has failed to show any legal interest in the subject matter of the claim and has not shown how he is legally affected by the orders of this Court. S/N sfAi7/7tlEGVpulgueSGbQ
19
I find that the issues raised in the affidavit filed by Su Ming Jiun and the civil suit bearing number BA-22NCC-153-12/2022 do not relate to the debt owed by the Respondent to the Trillion Oscar. The fact shows that the Respondent did owe Trillion Oscar the sums as stated in the Judgment entered by the High Court and despite the said judgment, the Respondent did fail to pay the sums due based on the statutory notice issued by Trillion Oscar.
20
I have also considered the effect of the injunction granted by the High Court of Shah Alam and whether the said order prevented Lim Aik Gee or even the Petitioner from proceeding with this Petition. I find that the order relied on by the Su Ming Jiun does not prevent the Petitioner from proceeding with this Petition. Neither does it prevent Lim Aik Gee from affirming any affidavit on behalf of the Petitioner. There is also no order preventing or staying the powers granted to Lim Aik Gee to act on behalf of the company from pursuing the claims against the Respondent. The resolution relied on by the Petitioner that Lim Aik Gee has the right to continue with this claim and all related proceedings remains valid.
21
I also find that the issues raised in the suit 153 between Trillion Oscar and the said Lim Aik Gee as filed in the Shah Alam High Court are S/N sfAi7/7tlEGVpulgueSGbQ separate and independent to the sums claimed by Trillion Oscar against the Respondent. They have no bearing on the judgment debt owed by the Respondent to the Petitioner.
22
Furthermore, as stated earlier, the interlocutory injunctions obtained against Lim Aik Gee did not preclude him from utilizing his rights as a director of the company and did not stop him from undertaking any steps that he believes are in the best interests of the company. The orders made against Lim Aik Gee are at this juncture only to preserve the assets of the company and to preserve the records of the company. No order was obtained to stop Lim Aik Gee from acting as the director of the company or from affirming any affidavit that he believes is made in the best interests of the company.
23
Further to the above, I also do not see any reason put forth by the said Su Ming Jiun to show any legal or beneficial interest in the Respondent. He has only shown that he is a contributor to the Petitioner but he has no interest or rights with regard to the Respondent or to any of the assets or property of the Respondent. S/N sfAi7/7tlEGVpulgueSGbQ
24
It is also crucial to note that the Petition filed against the Respondent is based on an application for a summary judgment entered against the said company in the civil suit bearing number WA-22NCC-681-09/2023. The said judgment was entered based on the affidavits filed and is not a default judgment. In other words, the merits of the claim and the defence put forth by the Respondent were considered by the High Court, and after considering the same, it was found that summary judgment should be entered for the sum of RM 3,000,000.00 claimed against the Respondent. This order was not stayed by the Court of Appeal.
25
For the said reason, I find that the said Su Ming Jiun has not shown any legal interest or legal right to the subject matter of the claim to justify his application to intervene in these proceedings.
II
(ii) Stay of Proceedings pending the outcome of the Shah Alam Suit 26. I also find that the said Su Ming Jiun has also failed to show any special circumstances why this suit should be stayed pending the outcome of the proceedings in Shah Alam as referred to earlier. See Jagdis Singh Banta Singh v. Outlet Rank (M) Sdn Bhd [2013] 3 CLJ S/N sfAi7/7tlEGVpulgueSGbQ 47; [2013] 3 MLRA 104; Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1;
27
I make reference to the test laid down by Ong Chee Kwan J in Public Bank Berhad v. Umapagan K Ampikaipakan & Ors [2025] CLJU 510: - “[38] The Court's power to grant a stay of proceedings is derived from its inherent jurisdiction under Order 92 Rule 4 of the Rules of Court 2012 ("ROC 2012"). It is a discretion that must be exercised judiciously and in accordance with established legal principles to ensure justice and fairness between parties. The Court will only grant a stay of proceedings if valid grounds are demonstrated by the applicant. The key considerations for the evaluation are as follows:
i
there is the existence of special circumstances that must be exceptional and compelling, such that it would be unjust or inequitable for the case to proceed;
II
(ii) the balance of justice, which requires the Court to weigh whether granting a stay would prejudice the opposing party or cause unnecessary delay, compared to the potential harm to the applicant if the stay is not granted; S/N sfAi7/7tlEGVpulgueSGbQ
IV
(iv) the prevention of abuse of process such that if the Court finds that the application is frivolous, vexatious or intended to solely to delay proceedings, the stay will be refused.”
28
Also refer to Government of Malaysia v. Pembangunan Mesra Sdn Bhd [2018] MLJU 679 where Lim Choong Fong J held: - “[20] As to the source of my power, I am doubtful that I could entertain the Application pursuant to s. 470 of the Companies act which is pari materia with s. 222 of the Companies Act 1965. I share and adopt the views of Abdul Aziz J (later FCJ) in Shing Hup Hin Construction Sdn Bhd v General Soil Engineering Sdn Bhd [1998] 3 MLRH 260 as follows: “On the proper analysis of the manner in which s 222 is constructed, during the pendency of the winding-up petition in question, there is also pending an action or proceeding against the company that is sought to be wound up. The action or proceeding that is also pending must be other than the winding-up petition in question, although it may be some other winding – up petition. What may be applied for and ordered under the section is a stay of further proceedings in the winding-up petition in question, which in this case is the present winding – up petition.” S/N sfAi7/7tlEGVpulgueSGbQ I am therefore left with s. 25(2) read together with paragraph 11 of the Schedule of the Courts of Judicature Act 1964 which is a discretionary power that must be exercised judiciously. [21] As acknowledged by both parties, the exercise of discretion is subject to the special circumstances test. The onus of so demonstrating such special circumstances lie with the Respondent. In my opinion, the circumstances here seem to be merely a moratorium to facilitate the launch of its new redevelopment project. The redevelopment project should then generate funds to repay the Petitioner. I however observed that this redevelopment project is still at infancy subject to the approval of the Government. Assuming that the project takes off, it would still take several years before any profit can even be realized from it. Accordingly, the Petitioner has to further await for the eventual success of the project to collects its dues if the Application is allowed. Otherwise the Petitioner may forthwith recover its dues from whatsoever assets that can be realized for distribution to creditors by the winding-up of the Respondent company. In the final analysis, I find that the circumstances of the Respondent advanced before me are plainly ordinary business circumstances that do not qualify as special circumstances. In other S/N sfAi7/7tlEGVpulgueSGbQ words, there is nothing exceptional here that exceeds or excels what is usual or common.”
29
I also refer to Lion Pacific Sdn Bhd v. Pestech Technology Sdn Bhd [2021] MLJU 1399: - “…Had a stay been granted, the debt is deemed a disputed debt, justifying the grant of a Fortuna injunction. (See: Sanjung Suria Sdn Bhd v PLB-KH Bina Sdn Bhd [2014] 7 MLJ 1). As matters stand, the stay was refused twice. There is no disputed debt, but a valid and enforceable judgment.”
30
What is considered to be a disputed debt can be seen in Bank Utama (M) Bhd v. GKM Amal Bhd [2000] 5 MLJ 657 where the Court held: - “(2) 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 (see p 660A–B); Solid Kitchen Sdn Bhd v Regal Development Sdn Bhd [1998] 6 MLJ 437 not followed. 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 S/N sfAi7/7tlEGVpulgueSGbQ against the judgment merely means that he still disputes the debt but does not establish that the debt is bona fide disputed (see p 660B-C).”
31
The subject matter of the dispute in Shah Alam will not be affected by the decision made by this Court in the claim against the Respondent. The derivative action is a separate action and is not dependent on the claim by Trillion Oscar Sdn Bhd against the Respondent or the liquidation of the Respondent. If successful, the said Su Ming Jiun is entitled to claim through Trillion Oscar the sum of RM 2.555 million and any proceeds of the said sums from Lim Aik Gee or the shares in the said company independent of any claim against Timur Enterprise Sdn Bhd.
32
I find that there are no special circumstances justifying the stay and that the balance of convenience does not lie in favor of the Applicant / Intervener. The proceedings in the Shah Alam High Court will not be affected by the orders of this Court and the Applicant/ / Intervener could continue with those derivative action independently of this Winding Up Petition. S/N sfAi7/7tlEGVpulgueSGbQ
33
For the said reasons, I dismiss Enclosure 15 with costs. The said Su Ming Jiun is still entitled to appear and oppose this Winding-Up Petition despite the dismissal of Enclosure 15.
III
(iii) Stay of the Winding-Up under Section 470 of the Companies Act 2016 34. I note that in Enclosure 15 the said Applicant / Intervener did not invoke specifically Section 470 of the Companies Act 2016, nor did they seek to stay these proceedings based on the said proviso.
35
Counsel for the Intervener nonetheless attempted to rely on Section 470 of the Companies Act 2016 and tried to persuade this Court that her client is entitled to seek such orders before the said company / Respondent is wound up.
36
I reproduce Section 470 of the Companies Act 2016 for ease of reference: - “(1) At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is S/N sfAi7/7tlEGVpulgueSGbQ pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.
2
The applicant shall lodge with the Registrar the office copy of the order within fourteen days from the making of such order under subsection (1).”
37
It must be noted that Section 470 of the Companies Act 2016 cannot be read in isolation. It must be read together with Section 464 of the Companies Act 2016: - “(1) A company, whether or not it is being wound up voluntarily, may be wound up under an order of the Court on the petition of any one or more of the following:
a
the company;
b
any creditor, including a contingent or prospective creditor, of the company;
c
a contributory or any person who is the personal representative of a deceased contributory or the trustee in bankruptcy or the Director General of Insolvency of the estate of a bankrupt contributory; S/N sfAi7/7tlEGVpulgueSGbQ
d
the liquidator;
e
the Minister on the ground specified in paragraph 465(1)(d) or (l);
f
in the case of a company which is a licensed institution under the Financial Services Act 2013 or the Islamic Financial Services Act 2013 and which is not a member institution under the Malaysia Deposit Insurance Corporation Act 2011 [Act 720], the Central Bank of Malaysia;
g
in the case of a company which is an operator of a designated payment system under the Financial Services Act 2013 or the Islamic Financial Services Act 2013, the Central Bank of Malaysia;
h
the Registrar on the ground specified in paragraph 465(1)(k); or
i
in the case of a member institution under the Malaysia Deposit Insurance Corporation Act 2011, the Malaysia Deposit Insurance Corporation mentioned in section 99 of that Act.
2
Notwithstanding anything in subsection (1)- S/N sfAi7/7tlEGVpulgueSGbQ
a
a person referred to in paragraph (1)(c) may not present a petition on any of the grounds specified in paragraph 465(1)(a), (b),
d
or (g) unless the share in respect of which the contributor was a contributory or some of the shares were originally allotted to the contributor, or have been held by him and registered in his name for at least six months during the eighteen months before the presentation of the petition or have devolved on him through the death or bankruptcy of a former holder;
b
a petition shall not be presented by any person except a contributory or the Minister if the ground of the petition is default in lodging the statutory declaration under subsection 190(3);
c
the Court shall not hear the petition if presented by a contingent or prospective creditor until such security for costs has been given as the Court thinks reasonable and a prima facie case for winding up has been established to the satisfaction of the Court; and
d
the Court shall not, where a company is being wound up voluntarily, make a winding up order unless the Court is satisfied that the voluntary S/N sfAi7/7tlEGVpulgueSGbQ winding up cannot be continued with due regard to the interests of the creditors or contributories.”
38
Therefore, the word “contributor” in the said provisos refers to the contributor to the company that is being wound-up and not to persons such as the said Su Ming Jiun. He is only a shareholder or a contributor to the Petitioner and has no right to seek a stay of the winding-up proceedings under Section 470 of the Companies Act 2016. I find that the counsel for the Intervener has misread and misapplied the said section.
39
Even if I am wrong on the interpretation of Section 470 of the Companies Act 2016, I find that the issues raised by counsel for the Intervener do not fall within the categories recognized to justify a stay of the proceedings.
40
Usually, it must be shown that the debt being utilized as the basis to wind up the company is disputed, or that there is sufficient evidence to show that the company is solvent. This could be used as a reason to show that there were special circumstances justifying the stay of proceedings to enable the Respondent to dispute the claim before the Courts. This was S/N sfAi7/7tlEGVpulgueSGbQ not shown by the Respondent or even by the proposed Intervener. Instead, the Intervener only refers to his internal dispute with Lim Aik Gee. I find that those facts do not justify the exercise of the right to stay these proceedings under Section 470 of the Companies Act 2016.
41
Counsel has again simply relied on the dispute internally within Trillion Oscar Sdn Bhd. I find that those facts do not fall within the category of cases justifying the said stay. Refer to Hong Leong Bank Berhad v. B-Mathavon Stores (M) Sdn Bhd [2020] CLJU 569, Laman Kejora Sdn Bhd v. Ibai Golf & Country Club Bhd [2019] CLJU 2162 and the Court of Appeal decision in International Construction & Civil Engineering Sdn Bhd v. Jittra Sdn Bhd & Ors [2018] CLJU 1252 and Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248. The threshold is only passed if it is shown that there are special circumstances which warrant the stay and I do not find such based on the contents of the affidavits filed before this Court.
42
I note that Counsel for the Intervener relies on the decision of Liza Chan J in Tan Poh Lee v. Tan Kim Choo Holdings and Tan Boon Thien [2023] 1 LNS 178. It must be noted that they stay of proceedings in that case was sought by a contributor or shareholder of the company that was S/N sfAi7/7tlEGVpulgueSGbQ being wound up. Therefore, the facts are not the same and cannot be used to support this application.
43
For the above reasons, I dismiss the application by Su Ming Jiun in Enclosure 15 with costs. Enclosure 1 – Petition to Wind Up 44. With regard to Enclosure 1, I am satisfied that the Petitioner has managed to prove to this court that the Statutory Notice of Demand pursuant to Section 465(1)(e) and Section 466(1)(a) of the Companies Act 2016 was served on the Respondent on 9-9-2024. The said notice is based on the orders entered by this Court as referred to earlier. The required Registrar Certificate was also obtained by the Petitioner proving that the cause papers are in order.
45
The 21 days period therein had elapsed and that the Respondent did fail to comply with the said notice, this triggers the presumption that the Respondent is unable to pay its debts. See Eastool Industries Sdn Bhd v. Getfirms Electronics (M) Sdn Bhd [2001] 6 CLJ 151, Textile Gellery Co Ltd (Thailand) v. Pasaraya Gallery Sdn Bhd [2014] CLJU S/N sfAi7/7tlEGVpulgueSGbQ 408 and Homewest Sdn Bhd v. Vision Returns Sdn Bhd [2016] 5 CLJ
922
922.
46
As referred to earlier, the Petitioner has produced the Judgment of the High Court that had entered summary judgment against the Respondent. There is no evidence by the Respondent in the form of an Affidavit In Opposition in accordance with Rule 30 of the Companies (Winding up) Rules 1972 that was filed to show that the company was solvent and why it should not be wound up. The Respondent has also not shown that the summary judgment was stayed by the Court of Appeal. Therefore, the presumption that the Respondent is insolvent remains.
47
I further find that the Petitioner’s papers were in order and in compliance with the requirements under the Companies Act 2016 and the Companies (Winding up) Rules 1972.
48
For the above reasons, I grant the following orders as sought by the
i
An order that the Respondent is wound up S/N sfAi7/7tlEGVpulgueSGbQ
II
(ii) Mr Onn Kien Hoe of Crowe Restructuring & Insolvency Plt be appointed as Liquidator.
III
(iii) For an order of costs of RM10,000.00 to Petitioner to be paid out by the Liquidator out of the assets of the Respondent.
IV
(iv) That Su Ming Jiun pays the Petitioner the costs of RM 10,000.00 for the costs of opposing the Petition and for Enclosure 1 subject to allocator. Dated 27 March 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 S/N sfAi7/7tlEGVpulgueSGbQ Counsel: John Wong & Chua Jeung Ru for the Petitioner Shui – Tai Advocates & Solicitors Cheryl Tay & Liao Jia Wen for the Contributory (Su Ming Jiun) and Respondent Cheryl Tay & Partners Advocates & Solicitors S/N sfAi7/7tlEGVpulgueSGbQ
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