Yoganathan a/l Ramasamy and Nur Azreen Binti Mohd Arshad for the Applicant [Messrs R.Y. Nanthan & Partners] v Shahabudin Bin Shaik Alaudin and Siti Nurazwani Binti Zulkeflee for the Respondent [Messrs Shahabudin & Rozima] (POST WINDING UP NO.: WA-28PW-323-07/2022)

In the Notice of Motion dated 4.7.2022 in enclosure 1 (Motion), Genetica (M) Sdn Bhd (“Applicant”) had applied to this Court that the Winding Up Order dated 26.4.2022 (26.4.2022 Order) be terminated pursuant to section 493(1) of the Companies Act 2016.

The grounds in support of the Motion were briefly as follows:- i. Genetica (M) Sdn Bhd, being a Judgment Creditor of Shapadu Energy And Engineering Sdn Bhd (‘the Respondent’), had filed a Winding-Up Petition against the Respondent at the Shah Alam High Court (BA28NCC-544-11/2021) on 8/11/2021; ii. The Respondent was well aware of the Winding-Up Petition filed against it at the Shah Alam High Court as their solicitors had represented them during the Hearing of the Petition; iii. The Respondent was subsequently wound-up by an Order of the Shah Alam High Court on 20/4/2022; iv. Therefore, there is already a subsisting Winding-Up Order against the Respondent when this Honourable Court ordered the Respondent to be wound-up on 26/4/2022.

On 18.8.2022 after having heard learned counsels for the Applicant, the appointed liquidator of the Company as per the Winding Up Order at the Shah Alam High Court, the Petitioner and the Interim Liquidator respectively, I had granted Order in Terms of the Motion with no order as to costs.

The Petitioner has since appealed against my decision of 18.8.2022 and herewith are my grounds. 3

There are 2 Winding-Up Orders against the Respondent premised upon the Respondent’s inability to pay its debts pursuant to s.465(1)(e) and s.466(1)(a) Companies Act 2016;

Order dated 20.4.2022 (SAHC Order) granted in SAHC Petition wherein Mr. Tharma Iswara A/L S. Subramaniam was appointed as the liquidator of the Respondent; and

26.4.2022 Order obtained at the Kuala Lumpur High Court wherein En. Baltasar bin Maskor was appointed as the liquidator of the Respondent.

The Respondent has filed appeals against both:

SAHC Order vide Court of Appeal Civil Appeal No.: B02(NCC)(A)- 104-05/2022 (“Appeal 104”); and

KLHC Order vide Court of Appeal Civil Appeal No.: W- 02(NCC)(A)-954-05/2022 (“Appeal 954”).

The law is clear that there can only be 1 winding-up order against a company, as once the Company has been wound up, the Company’s board can no longer function and the entire affairs of the wound-up company will be in the hands of the Liquidator. It is wholly illogical for the same company to be wound up again when the first winding up order is still in place and in existence, see Sinarlim Sdn Bhd v Waja 4 Destinasi (M) Sdn Bhd [2011] 5 MLJ 416 where Ramly Ali JCA (as he then was) delivering the judgment of the Court of Appeal had held “However, the court must stress that at no time a company which has been wound up can subsequently be wound up again.”

It is this Court’s view that although there are 2 appeals against both the Winding Up Orders obtained, the proper Court to terminate the 26.4.2022 Order is this Court pursuant to Section 493(1) of the Companies Act 2016 which reads:- “(1) At any time after an order for winding up has been made, the Court may, on the application of the liquidator or of any creditor or contributory and on proof to the satisfaction of the Court that all proceedings in relation to the winding up of the company ought to be terminated, make an order terminating the winding up of the company as the Court thinks fit.

In making an order under subsection (1), the Court may take into consideration, but not limited to, the following facts:

the satisfaction of the debts;

any agreement by the liquidators, creditors, contributories and other interested parties; or

other facts that the Court considers appropriate.”

It is clear that section 493(1) of the Companies Act 2016 empowers this Court to terminate a Winding Up Order so long as this Court considers the same appropriate. 5

I have also noted the Court of Appeal case of Sinarlim Sdn Bhd v Waja Destinasi (M) Sdn Bhd [2011] 5 MLJ 416 relied on by the Petitioner’s counsel. With respect the said Sinarlim Sdn Bhd [supra] was decided on the basis of the KL–D8 court therein having no jurisdiction to set aside or rescind a winding up order earlier made and perfected by another court i.e the Ipoh High Court on 21 June

It therefore has no bearing on the matter before me where this Court is terminating the 26.4.2022 Order which was granted by this Court itself. The issue of another winding-up petition filed in the Ipoh High Court on 5 January 2007 in that case therein being held valid even though at the time of filing there was another winding-up petition earlier filed and pending in the KL–D2 court, also does not arise here.

This Court therefore holds that the 26.4.2022 Order is to be terminated and Order in terms of the Motion be granted. Dated: 18th day of August 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: Yoganathan a/l Ramasamy and Nur Azreen Binti Mohd Arshad for the Applicant [Messrs R.Y. Nanthan & Partners] 6 Shahabudin Bin Shaik Alaudin and Siti Nurazwani Binti Zulkeflee for the Respondent [Messrs Shahabudin & Rozima] Cheng Teng Keat for the Petitioner [Messrs Cheng, Lee & Goh] Enoveetha a/p Bhaskaran for the Proposed Intervener [Messrs Sree Harry & Co.]