UBBIM Resources Sdn Bhd v TRT Engineering (M) Sdn Bhd (BA-28NCC-698-12/2023)

High Court of Malaysia12 Aug 2025

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BA-28NCC-698-12/2023 Kand. 20/08/2025 14:42:55 IN THE HIGH COURT OF SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN COMPANIES (WINDING-UP) NO:BA-28NCC-698-12/2023 In the matter of TRT Engineering (M) Sdn Bhd; And In the matter of Section 465 (1)(e) of the Companies Act 2016 BETWEEN UBBIM RESOURCES SDN. BHD. .. PETITIONER (COMPANY NO: 200101017995 (553752-T)) AND TRT ENGINEERING (M) SDN. BHD. .. .RESPONDENT (COMPANY NO: 200501007129 (684176-H)) GROUNDS OF JUDGMENT (Enclosure 1: Petition to Wind Up the Respondent Enclosure 15: Respondent’s Application to Strike Out the Petition) INTRODUCTION 1. These grounds concern two interrelated applications. Enclosure 1 is the Petitioner's petition to wind up the Respondent pursuant to S/N ut8yNqIlm8EiU//2TLZhQ . sections 465(1)(e) and 466(1)(a) of the Companies Act 2016 (“CA 2016”) on the basis of an unpaid debt arising from an adjudication decision rendered under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA’). 2. Enclosure 15 is the Respondent's application to strike out the Petition on grounds of non-compliance with statutory service requirements and the existence of a bona fide dispute. 3. Both applications were heard together. Upon careful consideration of the affidavits, submissions of counsel, and applicable legal authorities, the Court finds no merit in the striking out application and allows the Winding-Up Petition. The Court’s reasons are set out below. BACKGROUND FACTS 4. The Petitioner was engaged by the Respondent for construction- related works. Disputes arose regarding payment, leading the Petitioner to initiate adjudication under CIPAA. 5. The Adjudicator issued a decision dated 14 December 2023 in favour of the Petitioner for the sum of RM2,987,941.79. The Respondent did not participate in the adjudication process, nor did it seek to set aside or stay the adjudication decision. 6. On15 February 2024, the Petitioner successfully obtained an order from the High Court to enforce the adjudication decision as a judgment. 7. Astatutory notice under section 466(1)(a) CA 2016 was issued on 7 March 2024 and served on the Respondent. No payment was made within 21 days. 8. The Winding-Up Petition (Encl. 1) was filed on 15 April 2024. The Respondent responded with an affidavit in opposition and subsequently filed Enclosure 15 to strike out the Petition. THE STRIKING OUT APPLICATION (ENCLOSURE 15) Respondent's Grounds 9. The Respondent seeks to strike out the Petition on two primary grounds: (i) The Petition and statutory notice were not served at the Respondent's registered address as required under section 466(1)(a) CA 2016 and Rule 25 of the Companies (Winding-Up) Rules 1972; and (ii) The debt is allegedly disputed, and it would be unjust and inequitable to wind up a solvent company. Analysis on Service of the Petition and Statutory Notice 10. The Respondent relies heavily on an alleged discrepancy between the Petitioners affidavits and the process server's statutory declaration, asserting that service was carried out only at the business address and not the registered office. 11. However, the Petitioner has produced evidence to show that the statutory notice and Petition were served at both the business and registered addresses. The statutory declaration, while creating ambiguity, is not conclusive in the face of other evidence indicating receipt, including company acknowledgment via rubber stamp. 12. Moreover, the Respondent has clearly received the Petition, having filed an affidavit in opposition and the present striking-out application. In such circumstances, where the company has had actual notice and actively participated in proceedings, strict compliance with service formalities should yield to substance over form: see Re Tai Kwong-Yokohama Bhd and other authorities. 13. The Court is satisfied that service has been duly effected in compliance with the law and that the Respondent suffered no prejudice. Alleged Bona Fide Dispute 14. The Respondent asserts that the Petitioner failed to submit "as-built" drawings as required under clause 15 of the Letter of Award. It also raises concerns about an existing garnishee proceeding and the Petition’s alleged prematurity. 15. These arguments are untenable. The debt in question arises from an adjudication decision which has been enforced as a High Court judgment. The Respondent did not participate in the adjudication nor take any steps to set aside or stay the decision. 16. 17. 18. 19. 20. The law is now settled that debts arising from adjudication decisions under CIPAA, unless set aside or stayed, are not capable of being disputed at the winding-up stage (see Likas Bay Precinct v Bina Puri

2079

3 CLUJ 499, Sime Darby Energy v RZH Setia Jaya [2021] 9 CLJ 880, and Bludream City v Pembinaan Bina Bumi [2024] 4 MLJ 67 (FC)). | hold that the Respondent may not challenge a debt it failed to contest when it had the opportunity to do so under the CIPAA regime. The assertion that the Petition is “premature” is without merit. The adjudication decision has been enforced by the High Court, and a statutory notice issued and served. The requirements of section 466(1)(a) CA 2016 have been met. The garnishee proceeding is a separate mechanism of execution and does not preclude a parallel winding-up action. Both are legally permissible and not mutually exclusive. In sum, there is no genuine dispute on substantial grounds. The debt is final and binding, and the statutory presumption of inability to pay arises. THE WINDING-UP PETITION (ENCLOSURE 1) 21. Given the above findings, the Court is satisfied that the Petition is well-founded. 22. The Respondent is deemed unable to pay its debt under section 466(1)(a) of the CA 2016. There is a clear, undisputed judgment debt exceeding the statutory threshold. No payment has been made, and ihe Respondent has failed to rebut the statutory presumption of insolvency. 23. While the Respondent asserts that winding up would prejudice its ongoing business, it has not adduced cogent evidence of solvency. Assertions of prejudice or inconvenience are irrelevant where the debt is not genuinely disputed and the statutory criteria for winding- up are satisfied. CONCLUSION 24. For the foregoing reasons, the Court makes the following orders: (a) Enclosure 15 is dismissed with costs of RM5,000 to the Petitioner; (b) Enclosure 1 is allowed. The Court grants an order that the Respondent company, TRT Engineering (M) Sdn Bhd, be wound up by the Court under section 465(1)(e) read with section 466(1)(a) of the Companies Act 2016; (c) The Petitioner’s nominated liquidator, Wong Weng Foo, is hereby appointed as liquidator of the Respondent company. 25. | award costs to the Petitioner to be borne by the Respondent in the sum of RM8,000 for Enclosure 15 and RM10, 000 for Enclosure 1, subject to allocator. Dated: 12!" AUGUST 2025 re COUNSEL Solicitor for the Appellant Solicitor for the Respondent Tetuan Vemal Arasan & Associate Peguambela & Peguamcara No .91-A, Jalan Rengas Taman Selatan 41200 Klang Selangor Tetuan Lee & Poh Partnership Peguambela & Peguamcara Unit A-10-3, Tower A, Vertical Business Suite Avenue 3, Bangsar South 59200 Kuala Lumpur

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Case metadata

Court: High Court of Malaysia
Decision date: 12 Aug 2025
Case number: BA-28NCC-698-12/2023
Coram: YA Dato' Raja Rozela binti Raja Toran
Practice area: An application to wind up the petition under section 465 (1) (e) and 466 (1) (a) of the Companies Act 2016 (‘CA 2016’)-unpaid debt arising from an adjudication decision rendered under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”)-application to strike out the petition on grounds of non-compliance with statutory service requirements and the existence of bona fide disputes-grounds for striking out are the petition and statutory notice were not served at the Respondent’s registered address as required under section 466(1)(a) and Rule 25 of the Companies (Winding Up) Rules 1972-debt is disputed-it would be unjust and inequitable to wind up a solvent company- service was only carry out at the business address and not registered address-Respondent has clearly received the Petition-having filed an affidavit in opposition and the striking out application-court is satisfied that service has been duly effected and in compliance with the law-Respondent suffered no prejudice-debts arising from adjudication decisions under CIPAA, unless set aside or stayed are not capable of being disputed at the winding up stage-the debt is final and binding-the statutory presumption of inability to pay arises-no cogent evidence of solvency-striking out is dismissed-winding up order is granted
Version: Alasan Penghakiman 1
Published: 20 Aug 2025
Source ID: 3632dfba-26a2-48f0-94ff-fd932fecfe85

Catchwords

An application to wind up the petition under section 465 (1) (e) and 466 (1) (a) of the Companies Act 2016 (‘CA 2016’)-unpaid debt arising from an adjudication decision rendered under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”)-application to strike out the petition on grounds of non-compliance with statutory service requirements and the existence of bona fide disputes-grounds for striking out are the petition and statutory notice were not served at the Respondent’s registered address as required under section 466(1)(a) and Rule 25 of the Companies (Winding Up) Rules 1972-debt is disputed-it would be unjust and inequitable to wind up a solvent company- service was only carry out at the business address and not registered address-Respondent has clearly received the Petition-having filed an affidavit in opposition and the striking out application-court is satisfied that service has been duly effected and in compliance with the law-Respondent suffered no prejudice-debts arising from adjudication decisions under CIPAA, unless set aside or stayed are not capable of being disputed at the winding up stage-the debt is final and binding-the statutory presumption of inability to pay arises-no cogent evidence of solvency-striking out is dismissed-winding up order is granted

Parties

UBBIM Resources Sdn Bhd - petitioner - ejudgment_parties
TRT Engineering (M) Sdn Bhd - respondent - ejudgment_parties
INDUSTRIAL WATER ENGINEERS (M) SDN. BHD. - pencelah - ejudgment_parties

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UBBIM Resources Sdn Bhd v TRT Engineering (M) Sdn Bhd (BA-28NCC-698-12/2023)

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