DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. B-02-161-2007
ANVEST CORPORATION SDN BHD … PERAYU
(No. Syarikat: 81492-K)
WONG SIEW CHOONG SDN BHD … RESPONDEN
(No. Syarikat: 1079-P)
[ Dalam Perkara Pengglungan Syarikat Petisyen No. MT4-28-311-2005 Dalam Mahkamah Tinggi Malaya di Shah Alam
WONG SIEW CHOONG SDN BHD … Perayu
(No. Syarikat: 1079-P)
ANVEST CORPORATION SDN BHD … Responden
(No. Syarikat: 81492-K) ]
CORAM: GOPAL SRI RAM, HMR
ABDULL HAMID EMBONG, HMR ZAINUN ALI, HMR
JUDGMENT OF THE COURT
1. On 05.09.2005 the Respondent (Petitioner in the High Court) served a s.218 notice to the Appellant requiring the latter to pay up certain taxed costs due to the Respondent. The Appellant did not respond to that statutory notice.
2. On 16.12.2005 the Respondent presented a winding-up Petition against the Appellant which was fixed for hearing on 26.05.2006. The petition debt was a sum of RM 103,487.20 pursuant to an allocator plus interest arising from taxed costs due from the Appellant to the respondent from the Federal Court. (FC Civil Appeal No. 02-5-2003)
3. The Respondent further supported the Petition on account of further taxed costs due namely for RM 17,654.08 at the High Court and RM 106,869.33 at the Court of Appeal being proceedings connected with the Federal Court appeal. These were evinced in the creditors’ debt in the list of parties who had given notice to attend the hearing of the Petition.
4. No affidavit in opposition was filed by the Appellant. However at 3.27 pm. on the eve of the hearing date of the Petition the Appellants’ Solicitors by letter dated 25.05.2007 gave a notice of appointment of solicitors and also stated its willingness to settle the taxed costs (the purported tender) at the Federal Court and High Court levels. As regards the taxed costs at the Court of Appeal, the Appellant sought an adjournment to seek instructions, to which the High Court refused.
5. It may be noted here that the Appellant is not disputing its insolvency. It merely rested its application on the purported tender of settlement.
6. The grounds of this appeal is against the High Court’s refusal to accept the purported tender for settlement which the Appellant now contends as being “unreasonable, unfair and without basis”.
7. We have considered the exercise of the High Court’s discretion in rejecting the purported settlement on the very day of the hearing of the petition and its refusal for an adjournment, and
found that that decision had, in the circumstances, not been wrong.
8. We reiterate the legal position that the Appellant is required in law to file an affidavit in opposition to the petition, which it had not done.
Rule 30(1) of the Companies (winding-up) Rules 1972 spells out this legal requirement, stating –
” 30. (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. ”
9. The Appellant had ample time of over 5 months from the date the petition was presented i.e. 16.12.2005 to file its affidavit in opposition.
This Court had in the case of CROCUSES & DAFFODILS (M) SDN BHD v DEVELOPMENT & COMMERCIAL BAND held that
r. 30(1) of the 1972 Rules is mandatory in nature and that there must be strict compliance with it.
An affidavit in opposition is crucial as this would form the basis for the winding-up court to make an appropriate order [see r. 30(2)].
We are in agreement with the Respondent that a petitioner is entitled to refuse a last minute tender to settle the petitioned debt; even assuming that there was indeed a valid tender proffered. This passage from the Supreme Court of New South Wales was referred to us as authority on this point, in the case of AUSTRALIAN MID-EASTERN CLUB LTD v YASSIM (1989-90)1 ACSR 403 –
“However, the remaining steps in the argument do not follow. If a valid tender be made, a refusal of that tender (whether for good of bad reason, or for no reason at all) does not eliminate the debt in
question. The relationship of creditor and debtor still subsists. The tender is no answer to a claim for the debt unless ( as did not happen here) there is a continued readiness to pay, coupled with an actual payment into court: see Halsbury’s Laws of England, vol. 9, 3rd ed, Butterworths, para 289, p 169 ”.
Meagher JA went on to say –
” Moreover, both the solicitors and their client had every reason to refuse the money: a winding up summons was on foot, and there were other creditors. The client would probably have had to return the payment in the event of a winding up order being made: see Tellsa Furniture Pty Ltd (in liq) v Glendave Nominees Pty Ltd (1987) 9 NSWLR 254; 13 ACLR 64.
13. Also, in the case of OCCIDENTAL LIFE INSURANCE CO. OF AUSTRALIA LTD v LIFE STYLE PLANNERS PTY LTD (1992) III ALR 261, the Federal Court of Australia held that a refusal of the tender did not constitute a discharge or elimination of the debt due. In that case it was found that the applicant ” had every reason to refuse the tender in view of the probability of the payment being a preference in the winding-up of the company. ” The same concern is expressed by learned counsel of the Respondent here in the acceptance of the tender since an order for a winding-up of the Appellant shall under s.226 (4) Companies Act, operate in favour of all creditors and contributories.
14. Similarly in this case, the Respondent had every right not to accept the purported tender. Further, there was also the question of the costs indebted to the Respondent at the Court of Appeal amounting to RM 106,869.33, as stated in the affidavit of debt in the List of Parties Attending the Hearing of the Petition. The purported tender made by the Appellant did not include this debt, thus rendering it as not a valid tender.
15. For these reasons, we dismissed this appeal with costs, and
affirmed the order made by the High Court.
Dated: 30th January, 2008
DATO’ ABDULL HAMID EMBONG Judge Court of Appeal Malaysia
Counsel for the Appellant
Encik T. Y. Teh (En. Darwinder Singh & En. Apprao with him) (M/s Messrs T.Y. Teh & Partners)
Counsel for the Respondents
Encik Logan Sabapathy (En. Tharminder Singh & Miss S. Bhuvaneswary with him)
(Messrs Logan Sabapathy & Co)