1. Adon Bin Mohd Pendik(No. K/P: 2973707)2. Tee Ah Kow(No. K/P: 441207-01-5087) … Plaintif-PlaintifDanDanaharta Urus Sdn Bhd(Syarikat No.: 476316-T) … Defendan

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN SAMAN PEMULA NO: 24NCC-147-04/2015

 

Dalam Perkara Penggulungan Syarikat No. 28NCC-532-07/2014 Mahkamah Tinggi Kuala Lumpur, Danaharta Urus Sdn Bhd (No. Syarikat 476316-T) lwn Adon Steel Line Sdn Bhd (No. Syarikat 117531-M)

 

Dan

 

Dalam Perkara Perintah Penggulungan bertarikh 8.9.2014 Terhadap Adon Steel Line Sdn Bhd (No. Syarikat 117531-M) Di Bawah Seksyen 218 Akta Syarikat 1965 (Perintah tersebut)

 

Dan

 

Perkara Pengetepian Perintah tersebut Melalui prinsip Keadilan Semulajadi Dan Bidangkuasa Semulajadi Mahkamah

 

ANTARA

 

1. ADON BIN MOHD PENDIK (NO. K/P: 2973707)

 

2. TEE AH KOW

 

(NO. K/P: 441207-01-5087) … PLAINTIF-PLAINTIF

 

DAN

 

DANAHARTA URUS SDN BHD (Syarikat No.: 476316-T)

 

i

 

… DEFENDAN

 

JUDGMENT

 

A. Introduction

 

1. This is a suit by 2 directors cum shareholders (Plaintiffs) of a wound up company (Company) to set aside the Company’s winding up order (Winding Up Order) on the ground that the winding up petition (Petition) has not been served on the Company at the Company’s registered address. The novel question that arises in this case is upon proof that the Petition has not been served on the Company at the Company’s registered address –

 

(a) whether the Plaintiffs are entitled ex debito justitiae to set aside the Winding Up Order on the ground that there has been a breach of the second rule of natural justice; or

 

(b) whether the High Court can still uphold the Winding Up Order on the ground that a hearing of the Petition will not change the ultimate outcome of the case.

 

B. Background

 

2. Adon Steel Line Sdn. Bhd. is the Company which had been granted banking facilities (Facilities) by Bank Bumiputra Malaysia Bhd. (Bank).

 

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The repayment of the Facilities to the Bank had been secured by among others –

 

(a) a debenture created by the Company in favour of the Bank (Debenture);

 

(b) 2 charges over 4 pieces of land belonging to the Company (Land) had been registered under the National Land Code (NLC) in the Bank’s favour (Charges); and

 

(c) personal guarantees by the first Plaintiff (1st Plaintiff) and second Plaintiff (2nd Plaintiff).

 

3. On 7.5.1999, all the rights, title and interest of the Bank in, among others, the Facilities, Debenture and Charges, have been vested in the defendant company (Defendant) under s 14 of the Pengurusan Danaharta Nasional Berhad Act 1998 (1998 Act).

 

4. By way of a letter dated 9.11.2005 from the Defendant to the Company (Defendant’s Letter dated 9.11.2005) –

 

(a) the Defendant agreed to disclaim its rights, interest and title to the Land provided a sum of RM1,500,000 was paid within a stipulated period of time in 2 instalments; and

 

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(b) the Defendant reserved the right to proceed with legal action against the Company and the Plaintiffs as the Company’s guarantors in respect of any sum outstanding under the Facilities.

 

5. The Company accepted the terms and conditions stated in the Defendant’s Letter dated 9.11.2005 by way of a letter dated 28.11.2005 (Company’s Letter dated 28.11.2005). The Company’s Letter dated 28.11.2005 stated, among others:

 

(a) the Company thanked the Defendant for “withdrawing” the Land at a “full withdrawal sum” of RM1,500,000; and

 

(b) the Company proposed to pay RM600,000 as full and final settlement of the Defendant’s claim against the Company under the Facilities and also against the Plaintiffs as guarantors.

 

6. The Company did not pay RM1,500,000 within the time period stipulated in the Defendant’s Letter dated 9.11.2005. The Defendant did not accept the proposal in the Company’s Letter dated 28.11.2005 to settle the liability of both the Company and the Plaintiffs.

 

7. Messrs Moi Teik Seng & Partners (Messrs MTS), the Company’s solicitors, sent a letter dated 20.7.2007 to the Defendant (MTS’s Letter dated 20.7.2007). According to MTS’s Letter dated 20.7.2007 –

 

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(a) the Defendant was willing to accept payment of a sum of RM2,300,000 as final settlement of the Company’s indebtedness under the Facilities with the condition that the Company be voluntarily wound up by the Company’s shareholders; and

 

(b) the Company counter-proposed to the Defendant (Company’s Counter-Proposal) as follows –

 

(i) initial payment of RM1,300,000 would be made within 30 days of the Defendant’s acceptance of the Company’s Counter-Proposal;

 

(ii) upon the Company’s payment of RM1,300,000, the Defendant would discharge the Charges;

 

(iii) the balance of RM1,000,000 would be paid within 1 year from the date of the payment of RM1,300,000. As security for the payment of RM1,000,000, the Plaintiffs would execute a guarantee;

 

(iv) the voluntary winding up of the Company would commence upon the payment of RM1,000,000; and

 

(v) the Defendant would cancel the guarantee executed by the Plaintiffs.

 

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8. The Defendant sent a letter dated 21.3.2008 to the Company (Defendant’s Letter dated 21.3.2008) stating as follows:

 

(a) the Defendant’s management had agreed to allow the “withdrawal’ of the Land for RM1.5 million to be paid in a manner specified in the Defendant’s Letter dated 21.3.2008;

 

(b) the Charge “shall be discharged’ upon receipt in full of RM1.5 million; and

 

(c) if the Company wished to accept the offer in the Defendant’s Letter dated 21.3.2008, the Company should sign the Defendant’s Letter dated 21.3.2008 and return the duplicate of the Defendant’s Letter dated 21.3.2008 to the Defendant.

 

9. On 25.4.2008, the Company accepted the terms and conditions stated in the Defendant’s Letter dated 21.3.2008 by signing on the Defendant’s Letter dated 21.3.2008 (Agreement To Discharge Charge). The Company had paid the sum of RM1.5 million and the Charge had been discharged under NLC.

 

10. By a letter dated 25.3.2008 from the Defendant to the Plaintiffs (Defendant’s Letter dated 25.3.2008), the Defendant offered, among others, the following terms and conditions for full and final settlement of the guarantee executed by the Plaintiffs (Defendant’s Offer To Plaintiffs):

 

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(a) the Plaintiffs shall pay a total sum of RM1,044,196.94 million in 12 instalments; and

 

(b) the Defendant’s Offer To Plaintiffs “does not limit or restrict any right, power or remedy’ the Defendant may have under the 1998 Act or the Defendant’s right to commence legal proceedings.

 

11. The Plaintiffs accepted the Defendant’s Offer To Plaintiffs on 25.4.2008.

 

12. Despite the payments to discharge the Charge and the Plaintiffs’ liability as guarantors, there remained an outstanding sum due from the Company to the Defendant under the Facilities. The Defendant instructed its solicitors, Messrs Albar & Partners (Messrs AP), to send a letter dated 27.7.2012 which enclosed a notice under s 218(2)(a) of the Companies Act (CA) demanding the Company to pay RM4,784,363.26 (Demanded Sum), the outstanding sum due to the Defendant under the Facilities as at 30.6.2012 (Statutory Demand). The Statutory Demand had been sent to the Company’s address at No. 5 (1st Floor), Jalan Kijang, Taman Suntex, 9th Mile, Cheras, 43200 Kuala Lumpur (KL Address) on 30.7.2012.

 

13. According to the Defendant, the Statutory Demand had been sent to the Company at the KL Address based on a print-out of Companies Commission of Malaysia (SSM) on 1.5.2010 (SSM’s Print-Out dated

 

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1.5.2010) which showed the Company’s registered office at the Kuala Lumpur Address.

 

14. The Company changed its registered address from the KL Address to No. 8, Jalan CU 2, Taman Cheng Utama, 75250 Malacca (Malacca Address). On 31.5.2013 the Company lodged “Form 44” dated 23.5.2013 (Form 44) with SSM regarding the change of the Company’s registered address. Form 44 is provided in the Second Schedule to the Companies Regulations 1966 and provides for, among others, the change of a company’s registered address.

 

15. The Company sent a letter dated 10.6.2013 (Company’s Letter dated 10.6.2013) to Prokhas Sdn. Bhd. (Prokhas) stating as follows:

 

(a) the Company requested the Defendant to take action to wind up the Company for the following reasons –

 

(i) the Company was no longer active and was currently dormant;

 

(ii) there was no future business activity or plan to be carried out by the Company;

 

(iii) the Company’s directors were no longer the Company’s guarantors;

 

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(iv) the Company’s directors were above 68 years old and did not have the “ability” to run the Company; and

 

(v) the Company does not hold any valuable asset; and

 

(b) the Company “hoped” that the Defendant could look into the winding up of the Company “as soon as possible” because the Company “could not be maintained any longer.”

 

The Company’s Letter dated 10.6.2013 stated the Malacca Address of the Company.

 

16. The Company sent the following letters to Prokhas –

 

(a) a letter dated 25.4.2013 (Company’s Letter dated 25.4.2013)

 

requesting for the Company’s bank statements for the year 2012 in order to prepare the Company’s accounts; and

 

(b) a letter dated 17.12.2013 (Company’s Letter dated 17.12.2013)

 

requesting for documents regarding the release of the Company’s guarantors by the Defendant.

 

The Company’s Letters dated 25.4.2013 and 17.12.2013 stated the Malacca Address.

 

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17. On 26.12.2013, Prokhas sent a letter to the Company (Prokhas’ Letter dated 26.12.2013) enclosing documents requested by the Company. Prokhas’ Letter dated 26.12.2013 was sent to the Company’s Malacca Address and stated that the Company should forward a “settlement proposal’ for Prokhas’ consideration, failing which, Prokhas would “continue with legal action without any further reference” to the Company.

 

18. On 7.7.2014 the Defendant filed the Petition (Winding Up Petition no. 28 NCC-532-07/2014) against the Company in the Kuala Lumpur High Court (Winding Up Court). The Petition was served on the Company at the KL Address because the Defendant relied on a SSM’s print-out dated 18.10.2013 (SSM’s Print-Out dated 18.10.2013) which still showed the Company’s registered office at the KL Address. Surprisingly, despite the Company’s filing of Form 44 with SSM on 31.5.2013, the SSM’s Print-Out dated 18.10.2013 did not show the Company’s registered office at the Malacca Address!

 

19. The Petition had been gazetted by the Defendant on 31.7.2014 (Gazette Notification) and advertised as follows:

 

(a) in the “New Straits Times” newspaper on 22.7.2014 and 23.7.2014; and

 

(b) in the “StaT newspaper on 24.7.2014 and 25.7.2014

 

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(Newspaper Advertisements).

 

20. The Winding Up Court granted the Winding Up Order on 8.9.2014 and appointed the Official Receiver (OR) as the Company’s liquidator.

 

C. Legal proceedings

 

21. The Plaintiffs filed this originating summons (OS) on 7.4.2015 and

 

prayed for, among others, the following orders:

 

(a) a declaration that the Winding Up Order is invalid, null and void as the Company did not owe any money to the Defendant at all material times, especially at the time of the issue of the Statutory Demand by the Defendant to the Company;

 

(b) a declaration that the Defendant has breached the second rule of natural justice by serving the Petition on the wrong address of the Company;

 

(c) an order to set aside the Winding Up Order;

 

(d) additionally or alternatively, an order that all orders made by the Winding Up Court against the Company be set aside ex debito justitiae; and

 

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(e) costs.

 

22. The Plaintiffs’ first affidavit in support of the OS, averred, among others, the following:

 

(a) by way of Messrs MTS’s Letter dated 20.7.2007, the Company had proposed a sum of RM2,300,000 as full and final settlement of the indebtedness due to the Defendant by the Company and the Plaintiffs as guarantors;

 

(b) the Charges had been discharged under NLC;

 

(c) the Plaintiffs had been released as the Defendant’s guarantors; and

 

(d) Form 44 had been filed by the Company with SSM regarding the change of the Company’s registered address. The Plaintiffs exhibited a SSM’s print-out dated 17.7.2014 (SSM’s Print-out dated 17.7.2014) which showed the Company’s registered office at the Malacca Address.

 

D. Plaintiffs’ contentions

 

23. In support of the OS, the Plaintiffs advanced, among others, the following submission:

 

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(a) Ms. Lai Yee Foong (Ms. Lai), the deponent of the Defendant’s affidavits which had opposed the OS, had no authority to act for the Defendant;

 

(b) the Company did not owe any sum of money to the Defendant under the Facilities as there had been a settlement between the Company and the Defendant;

 

(c) the Defendant did not sue the Company and had not obtained any judgment against the Company before filing the Petition; and

 

(d) the Petition had been served wrongly at the KL Address and accordingly –

 

(i) there had been a breach of the second rule of natural justice because the Company had been deprived of its right to be heard before the Winding Up Order was made;

 

(ii) the Winding Up Order was a nullity; and

 

(iii) the High Court has inherent jurisdiction to set aside the Winding Up Order and the Plaintiffs can file the OS to set aside the Winding Up Order without filing an appeal to the Court of Appeal against the Winding Up Order.

 

E. Submission by Defendant

 

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24. The Defendant contended the following, among others, in opposing the

 

OS:

 

(a) Ms. Lai had authority from the Defendant to affirm affidavits to oppose the OS;

 

(b) the Company owed the Demanded Sum (as at 30.6.2012) to the Defendant under the Facilities which entitled the Defendant to obtain the Winding Up Order. According to the Defendant, the Plaintiffs being the Company’s directors and alter ego, had knowledge of the Demanded Sum;

 

(c) since the Statutory Demand was served on the Company on 30.7.2012, there was an undue delay of more than 2 years and 8 months when the Plaintiffs filed the OS on 7.4.2015;

 

(d) the Winding Up Order has been duly sealed and based on the Court of Appeal’s judgment in Megah Teknik Sdn Bhd v Miracle Resources Sdn Bhd [2010] 6 CLJ 745, the Winding Up Order cannot be set aside unless the court exercises its inherent jurisdiction to do so; and

 

(e) instead of filing the OS, the Plaintiffs should have filed an appeal to the Court of Appeal against the Winding Up Order under s 253(2) CA. Alternatively, the Plaintiffs should have filed an application to

 

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Winding Up Court the under s 243(1) CA to stay the Winding Up Order.

 

F. Ms. Lai had authority to act for Defendant

 

25. The Defendant exhibited, among others, the following documents to evidence Ms. Lai’s authority to act for the Defendant in this case:

 

(a) a “Directors’ Circular Resolution” dated 11.4.2011 (DCR) from Pengurusan Danaharta Nasional Bhd. (Danaharta) which had delegated authority to “key personnel’ of Prokhas, including Ms. Lai, to act for Danaharta and Danaharta’s group of companies. Danaharta owns all the shares in the Defendant and it is not disputed that the Defendant is a member of the Danaharta’s group of companies; and

 

(b) Danaharta’s DCR dated 9.3.2011 approved the extension of a management agreement between Prokhas on the one part and Danaharta and Danaharta’s group of companies on the other part, for Prokhas to “manage, recover and dispose of the residual assets” of Danaharta’s group of companies (Management Agreement).

 

26. The Plaintiffs have submitted as follows in respect of Ms. Lai’s authority to affirm affidavits to oppose the OS on behalf of the Defendant:

 

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(a) Danaharta, Prokhas and Defendant are different companies which are separate legal entities. The Plaintiffs cited Zakaria Yatim J’s (as he then was) judgment in the High Court case of People’s Insurance Co (M) Sdn Bhd v People’s Insurance Co Ltd & Ors [1986] 1 MLJ 68, at 69, as follows –

 

“ The plaintiff company is a legal entity by itself. Although it is a subsidiary of the first defendant company, the plaintiff company maintains its own separate entity.”;

 

(b) at all material times, Ms. Lai was not an officer of the Defendant and had no authority to act for the Defendant. Accordingly, the affidavit verifying the Petition signed by Ms. Lai, was “null and void”. The Plaintiffs relied on the Court of Appeal’s judgment in Mega Sakti Sdn Bhd v Wong Wai Hoi & Ors [2008] 5 MLJ 321; and

 

(c) Ms. Lai had no personal knowledge of the averments made in her affidavits filed on behalf of the Defendant in this case.

 

27. With respect to the Plaintiffs, I am of the considered view that Ms. Lai is duly authorized to affirm affidavits on behalf of the Defendant in this case. My reasons are as follows:

 

(a) by virtue of the Management Agreement, Prokhas is authorized to act for the Defendant, a member of Danaharta’s group of companies, to “manage, recover and dispose of the residual assets” of the Defendant. Ms. Lai is an employee of Prokhas and is

 

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therefore authorized by reason of the Management Agreement to affirm affidavits on behalf of the Defendant in this case;

 

(b) Ms. Lai is an employee of Prokhas who has been specifically authorized by the DCR to act for Danaharta and Danaharta’s group of companies (including the Defendant);

 

(c) the Company has sent 3 letters to Prokhas, namely the Company’s Letters dated 25.4.2013, 10.6.2013 and 17.12.2013 which have been signed by the 2nd Plaintiff as the Company’s director. The Company has also received Prokhas’ Letter dated 26.12.2013. As such, the Plaintiffs are estopped from contending that Prokhas is not authorized to act for the Defendant. Suffice it for me to rely on the Federal Court’s judgment given by Gopal Sri Ram JCA (as he then was) in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 293 and 294, as follows –

 

“It is to be emphasised that the categories of cases in which a Court may permit an unpleaded point to be argued are not closed and that the foregoing three classes of case are but mere illustrations of a much wider principle. It is this. A Court may permit a litigant to argue that his opponent is estopped from raising a particular contention if it is in the interests of justice to do so. It is really a matter within the discretion of the particular Judge who, when deciding where the justice of the case lies, must have due

 

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regard to all the circumstances of the case, including any injury or prejudice that may be caused by the affected party being taken by surprise. If a Court comes to the conclusion that no injustice will be occasioned by permitting a party to raise estoppel as an issue, then, it may be justified in departing from the salutary rule contained in such decisions as Haji Mohamed Dom v. Sakiman [1956] MLJ 45 and Anjalai Ammal & Anor. v. Abdul Kareem [1969] 1 MLJ 22 that imposes upon a Judge the duty to strictly decide a case upon and only upon the issues raised in the pleadings and not upon an unpleaded case. Nevertheless, Courts must ensure that the occasions upon which such departure may be permitted are rare. For otherwise the rule which declares that a party is bound by its pleadings will be rendered meaningless.

 

That the justice of the case should be the overriding consideration is axiomatic. After all, Courts exist to do justice according to the law as applied to the substantial merits of a particular case. And rules of Court and of practice are created to facilitate the attainment of justice, not its obstruction.

 

The time has come for this Court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless .”

 

(emphasis added); and

 

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(d) Danaharta, Defendant and Prokhas are separate legal personalities but company “A” may authorize another company (“B”) and/or B’s employee to act for A. In this case, the Management Agreement and DCR authorize Prokhas and Ms. Lai respectively to act for the Defendant.

 

28. The cases cited by the Plaintiffs’ learned counsel can be easily distinguished from this case as follows:

 

(a) in Mega Sakti Sdn Bhd, there was no evidence of the authority of one Dr. William Lau Boon Kin (Dr. William Lau) to affirm an affidavit on behalf of all the purchasers of apartment units in a condominium (Purchasers) in support the Purchasers’ application to intervene in a suit between the developer of the condominium and another party. Accordingly, in Mega Sakti Sdn Bhd, at p. 327328, the Court of Appeal in a judgment given by Suriyadi JCA (as he then was) held that Dr. William Lau had no authority from the Purchasers to affirm affidavits on behalf of the Purchasers;

 

(b) People’s Insurance Co (M) Sdn Bhd concerned a dispute between a holding company and its subsidiary company. In People’s Insurance Co (M) Sdn Bhd, a holding company contended that a resolution of its subsidiary company’s board of directors could not bind the holding company. This contention was upheld in that case. In this case, there is no dispute between

 

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Danaharta and Defendant. The Defendant does not dispute that Danaharta’s DCR has authorized Ms. Lai to act for the Defendant. In any event, as decided above, the Management Agreement was sufficient to evidence Ms. Lai’s authority to act for the Defendant; and

 

(c) there was no room to apply the estoppel doctrine in Mega Sakti Sdn Bhd and People’s Insurance Co (M) Sdn Bhd.

 

29. The issue regarding the authority of Ms. Lai to affirm affidavits on behalf of the Defendant in this case should be distinguished from the question of whether Ms. Lai had any personal knowledge of the averments made in her affidavits. If a deponent of an affidavit has no authority to affirm the affidavit on behalf of a party, the affidavit is not admissible in the proceedings and may be struck out by the court and cannot be considered in the proceedings. If a deponent of an affidavit has authority to affirm the affidavit on behalf of a party, the weight to be attached to the matters affirmed in the affidavit is provided in Order 41 rule 5(1) Rules of Court 2012 (RC). Order 41 rule 5 RC provides as follows:

 

“ Order 41 rule 5 Contents of affidavit

 

5(1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

 

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(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof ”

 

(emphasis added).

 

30. For reasons stated above, I have decided that Ms. Lai is duly authorized to affirm affidavits on the Defendant’s behalf in this case. As such, Ms. Lai’s affidavits are duly admissible as evidence and should be considered in the OS. The question is what weight should be attached to the averments in Ms. Lai’s affidavits.

 

31. In respect of the weight to be attached to the averments in Ms. Lai’s affidavits –

 

(a) Order 41 rule 5(2) RC does not apply in this case as the hearing of the OS is not an “interlocutory proceedings”; and

 

(b) Ms. Lai signed the Petition on behalf of the Defendant and affirmed the affidavit which verified the Petition. Accordingly, Ms. Lai has personal knowledge of this case according to Order 41 rule 5(1) RC and the averments in Ms. Lai’s affidavits should be given due weight. More importantly, Ms. Lai’s affidavits referred to contemporaneous documents, such as letters from the Company and its solicitors, Messrs MTS, which corroborated the averments in Ms. Lai’s affidavits.

 

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G. Company owed money to Defendant under Facilities

 

32. The Plaintiffs contended that the Winding Up Order should be set aside as the Company did not owe any money to the Defendant under the Facilities. With respect, I am unable to accede to this submission because the contemporaneous documents in this case clearly evidenced the following –

 

(a) the Defendant’s Agreement To Discharge the Charge;

 

(b) the Defendant’s release of the Plaintiffs as guarantors for the repayment of the Facilities; and

 

(c) the Company still owed money to the Defendant under the Facilities.

 

33. I rely on the following contemporaneous documents to support the finding that the Company is indebted to the Defendant under the Facilities:

 

(a) the Defendant’s Letter dated 21.3.2008 (which had been accepted by the Company) only evidenced the Defendant’s Agreement To Discharge the Charge. The Defendant’s Letter dated 21.3.2008 did not state that upon payment of RM1.5 million, the Company’s indebtedness to the Defendant under the Facilities would be finally settled;

 

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(b) the Defendant’s Offer To Plaintiffs (accepted by the Plaintiffs) only concerned the personal liability of the Plaintiffs as the Company’s guarantors and did not involve the Company’s debt due to the Defendant under the Facilities;

 

(c) the Statutory Demand had been correctly served on the Company at the KL Address on 30.7.2012 (before the Company lodged Form 44 with SSM on 31.5.2013) but there was no denial by the Company that the Company did not owe the Demanded Sum to the Defendant. The Company’s failure to deny the contents of the Statutory Demand meant that the Company had impliedly admitted the Company’s indebtedness to the Defendant under the Facilities. This is clear from the following cases –

 

(i) in David Wong Hon Leong v Noorazman bin bin Adnan

 

[1995] 4 CLJ 155, at 159, the Court of Appeal decided as follows in a judgment delivered by Gopal Sri Ram JCA (as he then was) –

 

“During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant.

 

In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1987] 2 MLJ 479-487:

 

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In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff’s testimony in support of such promise. Lord Esher M.R., in his judgment, remarked,

 

Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise. ’ (Emphasis added). Earlier, in his judgment, he said, ‘Now there are cases – business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree.”

 

(emphasis added); and

 

(ii) David Wong Hon Leong has been affirmed by the Court of Appeal in a judgment given by Hasan Lah JCA (as he then

 

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was) in Jetara Sdn Bhd v Maju Holdings Sdn Bhd [2007] 3 CLJ 41, at 55; and

 

(d) Prokhas’ Letter dated 26.12.2013 (which was sent to the Company’s registered address at the Malacca Address) expressly requested for the Company’s proposal to settle the Company’s indebtedness to the Defendant under the Facilities. The Company did not reply to Prokhas’ Letter dated 26.12.2013 to state that the Company did not owe any sum of money to the Defendant under the Facilities.

 

H. Defendant could file Petition against Company

 

34. As explained above, the contemporaneous documents proved that the Company was indebted to the Defendant under the Facilities. The Defendant was clearly a “creditor’ of the Company within the meaning of s 217(1)(b) CA. Consequently, the Defendant was entitled to present the Petition against the Company under s 218(1)(e) CA on the ground that the Company was “unable to pay its debts” due to the Defendant.

 

35. I am not able to accept the Plaintiffs’ contention that before filing the Petition, the Defendant should have first filed a suit and should have obtained a judgment against the Company to recover the Demanded Sum. I rely on my earlier judgment in Prestige Global Resources Sdn Bhd v Gabungan Hartamas Sdn Bhd [2015] 2 CLJ 116, at 130-132, as follows:

 

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Does Petitioner Need Monetary Judgment To Wind Up Respondent?

 

[28] The following appellate decisions have clearly held that a creditor need not obtain a monetary judgment before filing a winding up petition:

 

(a) in Morgan Guaranty Trust Company of New York v. Lian Seng Properties Sdn Bhd [1991] 2 MTC 92; [1991] 1 MLJ 95, at p. 97, the Supreme Court in a judgment given by Hashim Yeop Sani CJ (Malaya) decided as follows:

 

It would seem to us unarguable on the facts that the petitioner had on 10 December 1987, that is, the date of filing of the petitioner, a prima facie right of an unpaid creditor to file the petition. There was no evidence that he payment was ‘stage managed’ and even if it was, it would make no difference as: (a) the petitioner was in our view entitled to invoke cl 5.2 of the guarantee agreement; and (b) prima facie a creditor who is not paid has a right to file a petition for a winding-up order whatever may be his other motives. See also Re Sanpete Builders (S) Re Ltd [1989] 1 MLJ 393. It is not good law that only a creditor who feels goodwill towards his debtor is entitled to a winding-up order – IOC Australia Ltd v. Mobil Australia Ltd (1973) 49 ALJR 176 at p 182.

 

(emphasis added);

 

26

 

(b) the Court of Appeal’s decision in Dataran Rentas Sdn Bhd;

 

(c) in Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248, at p. 260, Gopal Sri Ram JCA (as His Lordship then was) decided as follows in the Court of Appeal:

 

But a petition for winding up is not execution. For a winding up petition is not based upon any judgment of a court. Normally, it is based on the inability of a company to pay its debts as and when they fall due. Such inability is normally evidenced by the company’s inability to satisfy or compound a notice of demand issued pursuant to s. 218 of the Companies Act. But the issuance of such a notice is not a sine qua non for the presentation of a winding up petition. What is needed is compelling evidence of the company’s inability to pay its debts as and when they fall due.

 

(emphasis added); and

 

(d) in Lafarge Concrete (Malaysia) Sdn Bhd v. Gold Trend Builders Sdn Bhd [2011] 1 LNS 1763; [2012] 6 MLJ 817, at pp. 822-823, the petitioner company had not obtained a monetary judgment against the respondent company but yet, the Court of Appeal reversed the High Court’s decision and wound up the respondent company on the ground of the respondent company’s admission of indebtedness to the petitioner company. According to

 

27

 

Jeffrey Tan JCA (as His Lordship then was) in Lafarge Concrete (Malaysia) Sdn Bhd, at pp. 822-823:

 

Before we proceed to answer those questions, we should perhaps say that ‘a creditor is not required to obtain a judgment before serving a statutory demand …’ (The Law of Company Liquidation (4th Ed), by Andrew R Keay at p. 83) and ‘whether or not judgment had been obtained, an unpaid creditor is, as a general rule, entitled to a winding-up order against a company which is insolvent’ (The Law of Company Liquidation (4th Ed), by Andrew R Keay at p. 91). Where there is no judgment, it is not uncommon for companies to argue that the debt is disputed. But ‘in order to oppose a winding up petition, the respondent must raise a bona fide dispute in both a subjective and objective sense. It must be honestly believed to exist and must be based on substantial or reasonable grounds – BMC Construction Sdn Bhd v. Dataran Rentas Sdn Bhd [2001] 1 MLJ 356’ (Chan & Koh on Malaysian Company Law (2nd Ed), at para 22.145).

 

(emphasis added).

 

[29] There is nothing in the wording of s. 218(1)(e) CA to require the petitioner to obtain a monetary judgment before filing a winding up petition. It is clear that a creditor’s right to present a winding up petition is a statutory one conferred by s. 217(1)(b) CA and unless Parliament expressly curtails that right, no such restriction in the form of a monetary judgment should be implied. In my view, the fact that s.

 

28

 

218(2)(b) CA presumes a respondent company’s inability to pay debts when the execution of a judgment is not satisfied while s. 218(2)(a) and (c) CA do not rely on the existence of a monetary judgment, implies that the existence of a monetary judgment is not a condition precedent to the filing of a winding up petition ”

 

(emphasis added).

 

36. There is another reason why the Defendant is entitled to file the Petition in this case. The Statutory Demand had been correctly served on the Company’s registered address at the KL Address (before the Company lodged Form 44 with SSM), in accordance with s 218(2)(a) CA. Section 218(2)(a) CA provides as follows:

 

“218(2) A company shall be deemed to be unable to pay its

 

debts if –

 

(a) a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding five hundred ringgit then due has served on the company by leaving at the registered office a demand under his hand or under the hand of his agent thereunto lawfully authorized requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; . . .”

 

(emphasis added).

 

37. Upon the lawful service of the Statutory Demand on the Company and the Company’s failure to pay the Demanded Sum within the 21 days

 

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period stipulated in the Statutory Demand, there arose a rebuttable presumption that the Company was insolvent as explained in Prestige Global Resources Sdn Bhd, at p. 143, as follows:

 

“45. The Petitioner has served the Statutory Demand on the Respondent in this case. Upon the Respondent’s failure to pay the Claimed Sum as stated in the Statutory Demand, a rebuttable presumption of the Respondent’s insolvency arises under s 218(2)(a) CA whereby the Respondent has the legal burden to rebut such a presumption on a balance of probabilities. This is clear according to the following cases:

 

(a) the Supreme Court’s judgment in Sri Hartamas Development Sdn Bhd; and

 

(b) the Court of Appeal case of Pacific & Orient Insurance Co Bhd.”

 

(emphasis added).

 

I. Was Petition properly served at KL Address?

 

38. Rule 25(1) of the Companies (Winding Up) Rules 1972 (WUR) is relevant to this case and is reproduced here:

 

“Every petition shall, unless presented by the company, be served upon the company at the registered office of the company, and if there is no registered office, then at the principal or

 

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last known principal place of business of the company, if can be found, by leaving a copy with any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by leaving a copy at the registered office or principal place of business, or by serving it on such member or members of the company as the Court may direct; and where the company is being wound up voluntarily, the petition shall also be served upon the liquidator (if any) appointed for the purpose of winding-up the affairs of the company. The affidavit of service of petition may be in Form 5 or 6 ”

 

(emphasis added).

 

39. In view of the applicability of rule 25(1) WUR to the service of the Petition in this case, RC do not apply. This is clear from Order 1 rule 2(2) RC which reads as follows:

 

“ These Rules [RC] do not have effect in relation to proceedings in respect of which rules have been or may be made under any written law for the specific purpose of such proceedings or in

 

relation to any criminal proceedings ”

 

(emphasis added).

 

In Lai Kim Loi v Dato’ Lai Fook Kim [1989] 1 CLJ (Rep) 61, at 69-70, Gunn Chit Tuan SCJ (as he then was) in the Supreme Court, applied WUR and not the then applicable Rules of the High Court 1980, to a winding up petition.

 

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40. In respect of when a change in a company’s registered office takes effect, I refer to s 120(1) CA which provides as follows:

 

“120(1) Notice in the prescribed form of the situation of the registered office, the days and hours during which it is open and accessible to the public, and of any change therein shall be lodged with the Registrar within one month after the date of incorporation or of any such change, as the case may be, but no notice of the days and hours during which the office is open and accessible to the public shall be required if the office is open for at least five hours during ordinary business hours on each day, Saturdays, weekly and public holidays excepted.”

 

(emphasis added).

 

In Summit Co (M) Sdn Bhd v Nokko Products (M) Sdn Bhd [1985] 1 MLJ 68, at 70, Wan Suleiman FJ (as he then was) delivered the following judgment of the Federal Court:

 

“Mr. Wong for the respondents maintains that the date of the lodgement of the section 120 notice to the Registrar [Registrar of Companies] should be the effective date. We are inclined to agree with him. Whether the particulars are in due course (and as in this case very much later), entered into any register, is in our view irrelevant. Once the notice of change under section 120 [CA] has been lodged, anyone who wishes to ensure that a writ is served at the proper address can on payment of the prescribed fee

 

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avail himself of his right under section 11(2)(a) of the Act to “inspect any document filed or lodged with the Registrar”.”

 

(emphasis added).

 

Based on s 120(1) CA as interpreted in Summit Co (M) Sdn Bhd, the change in the Company’s registered address from KL Address to Malacca Address, took effect from 31.5.2013, when Form 44 was lodged by the Company with SSM. Accordingly, the Petition which had been filed on 7.7.2014 (after the Company’s lodgement of Form 44 with SSM), should have been served at the Company’s registered office at the Malacca Address and not at the KL Address.

 

41. Rule 25(1) WUR was applied in the Federal Court case of United Malayan Banking Corp Bhd v Richland Trade & Development Sdn Bhd [2000] 1 MLJ 385 (UMBC’s Case). In UMBC’s Case –

 

(a) the winding up petition had been served at 48, Serangoon Road, Penang (1st Address) on 26.2.1992. The High Court wound up the respondent company when the respondent did not turn up at the hearing of the winding up petition;

 

(b) the respondent company applied to the winding up court for an extension of time to file an application to set aside the winding up order. This was allowed by the winding up court;

 

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(c) the company secretary of the respondent company affirmed an affidavit deposing that the respondent company had moved from the 1st Registered Address to 731, Dato’ Keramat Road, Penang (2nd Address) in or about late April 1991. This affidavit had not been challenged by the appellant bank;

 

(d) the appellant bank contended that before serving the winding up petition on the respondent company on 26.2.1992, the appellant bank had done a company search of the respondent company on 29.1.1992 which showed the registered address of the respondent company to be the 1st Address;

 

(e) the respondent company tendered a photocopy of the receipt of the lodgement of Form 44 on 1.2.1992 to contend that the respondent company had changed its registered address from the 1st Address to the 2nd Address with effect from 1.2.1992 and accordingly, the winding up petition had not been served on the respondent company’s registered address on 26.2.1992 as required by r 25(1) WUR; and

 

(f) when the original receipt for the lodgement of Form 44 was tendered in the Federal Court, the original receipt did not show that Form 44 had been lodged by the respondent company! Abdul Malek Ahmad FCJ (as he then was) delivered the Federal Court’s judgment to reverse both the judgments of the Court of Appeal and High Court to decide that the winding up petition had been lawfully served on the respondent company’s registered office at the 1st Address in accordance with r 25(1) WUR.

 

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42. In MUI Bank Bhd v Golden Hornbill Hotel Sdn Bhd [1993] 1 MLJ 290, at 293, Chong Siew Fai J (as he then was) held as follows in the High Court:

 

“Service of process is an essential procedural step in properly constituted judicial proceedings. Its object is to give notice to the party who will or may be affected by the court’s judgment or order, so that he may be aware of, and may, if he so wishes, resist, that which is sought against him. The courts are always cautious to see that a defendant or respondent is fully apprised of the proceedings, if possible, before making any order against him. Rule 25(1) [WUR], therefore, although directory in nature, ought to be properly and carefully adhered to”

 

(emphasis added).

 

43. I am of the view that r 25(1) WUR has mandatory effect because if a winding up petition is not served at the respondent company’s registered address, the respondent company may be deprived of its right to oppose the winding up petition. Hence, there may be a breach of the second rule of natural justice (there may not be a breach of the second rule of natural justice if the respondent company nevertheless knows of the winding up petition and appears at the hearing of the petition despite lack of service of the petition at the respondent company’s registered address). Secondly, the serious and wide effect of a winding up order on the respondent company, its creditors, directors, employees and shareholders, supports a mandatory

 

35

 

requirement under r 25(1) WUR for the respondent company to be served with the petition at the respondent company’s registered address. Lastly, r 25(1) WUR employs the mandatory term ‘‘shall’. I will discuss later in this judgment the effect of a breach of r 25(1) WUR in this case.

 

44. In view of the importance of service of a winding up petition at the respondent company’s registered address as required by r 25(1) WUR (as explained above), I am of the opinion that a breach of r 25(1) WUR cannot be cured by r 194(1) WUR. Rule 194(1) WUR provides as follows:

 

“r 194. Formal defect not to invalidate proceedings

 

(1) No proceedings under the [CA] or the [WUR] shall be invalidated by any formal defect or any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the Court ”

 

(emphasis added).

 

I am of the view that rule 194(1) WUR does not apply when there has been a breach of r 25(1) WUR because –

 

36

 

(a) the petitioner’s failure to serve the petition at the respondent company’s registered address, does not constitute a “formal defect’ or “irregularity” within the meaning of r 194(1) WUR;

 

(b) substantial injustice may be caused to the respondent company, its creditors, directors, employees and shareholders by a breach of r 25(1) WUR which cannot be cured by r 194(1) WUR; and

 

(c) if r 194(1) WUR may be used to cure any non-compliance with r 25(1) WUR, this may “encourage” petitioners to by-pass r 25(1) WUR and hence, winding up petitions are therefore not required to be served at the respondent companies’ registered addresses. Such a consequence is both unjust and undesirable.

 

45. I am of the further view that a breach of r 25(1) WUR cannot be cured by Gazette Notification and Newspaper Advertisements regarding the Petition. This is because a respondent company may still not have actual knowledge of the Petition despite Gazette Notification and Newspaper Advertisements of the Petition.

 

46. If there has been a breach of r 25(1) WUR but for some reason (perhaps by reason of Gazette Notification and/or Newspaper Advertisements regarding the Petition), the respondent company appears at the hearing of the Petition and opposes the Petition, I do not see how the respondent company can subsequently complain that the Petition has not been served at the respondent company’s registered address. This is because in such a scenario, the respondent company

 

37

 

has exercised its right to oppose the Petition and accordingly, there has been no breach of the second rule of natural justice.

 

47. Before I proceed further to discuss whether the Defendant had served the Petition at the Company’s registered address, I need to address 2 conflicting High Court decisions on the construction of r 25(1) WUR on whether a petitioner’s affidavit of service of the Petition on the respondent company’s registered address (Affidavit of Service), should state whether any officer, servant or member of the respondent company could be found at the respondent company’s registered address to accept service of the Petition. In MUI Bank Bhd, at p. 293294, the High Court required an Affidavit of Service to state whether the respondent company’s officer, servant or member could be found at the respondent company’s registered address to accept service of the Petition. However, in the High Court case of Oh Keat Seng v Desaminium Jaya Sdn Bhd [2004] 7 MLJ 325, at 328-330, Vincent Ng J (as he then was) disagreed with MUI Bank Bhd and held that there was no requirement under r 25(1) WUR for a petitioner to get the respondent company’s officer, servant or member to acknowledge receipt of service of the Petition.

 

48. For reasons stated in Oh Keat Seng, I am of the view that r 25(1) WUR does not require an Affidavit of Service to state whether the respondent company’s officer, servant or member could be found at the respondent company’s registered address to accept service of the Petition.

 

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49. As the Company had lodged Form 44 with SSM on 31.5.2013, the Defendant was mandatorily required by r 25(1) WUR to serve the Petition at the Company’s registered office in Malacca Address. Furthermore, the Defendant knew of the Malacca Address from the following letters:

 

(a) the Company’s Letters dated 25.4.2013, 10.6.2013 and

 

17.12.2013 (to Prokhas) stated the Malacca Address; and

 

(b) Prokhas’ Letter dated 26.12.2013 was sent to the Company’s Malacca Address.

 

50. I will discuss later in this judgment regarding the effect of breach of r 25(1) WUR in this case.

 

J. Can Plaintiffs challenge validity of Winding Up Order?

 

51. As the Plaintiffs are the sole directors and shareholders of the Company, the Plaintiffs are therefore the “controllers” or “alter ego” of the Company.

 

52. I am of the opinion that notwithstanding the fact that the Plaintiffs are the Company’s “controllers” or “alter ego”, the Plaintiffs are not entitled to file the OS on behalf of the Company to challenge validity of the Winding Up Order. There are 2 reasons for my view.

 

39

 

53. My first reason is that under s 16(5) CA, a company is a legal entity which is separate from its directors and shareholders.

 

54. Malaysian case law allows a company’s legal personality be lifted or pierced by the court in limited circumstances. I rely on the following 2 Federal Court cases:

 

(a) in Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors [2015] 1 MLJ 773, Richard Malanjum CJ (Sabah & Sarawak) held as follows:

 

“96. ..we are of the view that it is now a settled law in Malaysia that the Court would lift the corporate veil of a corporation if such corporation was set up for fraudulent purposes, or where it was established to avoid an existing obligation or even to prevent the abuse of a corporate legal personality (See: Prest v Prest & Ors [2013] UKSC 34).

 

97. As to what constitutes fraudulent purposes it has been described as to include actual fraud or fraud in equity (See: Law Kam Loy & Anor v Boltex Sdn Bhd & Ors, supra). And fraud in equity occurred in ‘…cases where there are signs of separate personalities of companies being used to enable persons to evade their contractual obligations or duties, the court would disregard the notional separateness of the companies… ’ (See: Sunrise Sdn Bhd v First Profile (M) Sdn Bhd [1996] 3 MLJ 533)”

 

(emphasis added); and

 

40

 

(b) Hasan Lah FCJ decided as follows in Solid Investment Ltd v Alcatel Lucent (M) Sdn Bhd [2014] 3 CLJ 73, at 92 –

 

“ We agree with the Court of Appeal that the learned trial judge erred in lifting the corporate veil of the defendant to make the defendant liable to account to the plaintiff. The reason given by the learned trial judge was that it was in the interest of justice to prevent associated companies of Alcatel Group including the defendant from “darting in and out with the corporate labyrinth” before the court. We also agree with the Court of Appeal that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of corporate veil. The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362 as follows:

 

In my judgment, in the light of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity.”

 

(emphasis added).

 

55. From the 2 above Federal Court judgments, the Company’s corporate veil may be lifted or pierced by the court in this case if the following 2 conditions are fulfilled:

 

41

 

(a) there is evidence of the following circumstances –

 

(i) the Company has been incorporated for a fraudulent purpose;

 

(ii) the Company has been used as a vehicle to commit –

 

(1) actual fraud or Common Law fraud; or

 

(2) equitable fraud or constructive fraud;

 

(iii) the Company has been incorporated and/or used to evade a statutory, legal, equitable or contractual obligation owed by the Company to any party; or

 

(iv) there has been an abuse of the Company’s legal personality; and

 

(b) it is in the interest of justice to lift or pierce the company’s corporate veil.

 

56. It is clear that there is no basis to lift or pierce the Company’s corporate veil in this case. Accordingly, the Plaintiffs as the Company’s “controllers” or “alter ego” cannot file the OS to challenge the validity of the Winding Up Order on behalf of the Company. To allow the Plaintiffs to apply to court to invalidate the Winding Up Order on the Company’s behalf, is contrary to a fundamental principle of company law that a

 

42

 

company is a legal entity which is distinct from its directors and shareholders.

 

57. The second reason for my above view is that despite the appointment of OR as the Company’s liquidator, the Company’s directors still retain a residual power to challenge the validity of the Winding Up Order. I refer to the following Supreme Court’s judgment delivered by Hashim Yeop Sani CJ (Malaya) in Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1991] 3 MLJ 325, at 326-327:

 

“However, in our view, Mr Loh was not, with respect, correct if he said that the company could not appeal at all against the winding-up order. It is provided quite clearly in s 253(2) [CA] that, subject to the rules, an appeal from any order or decision made or given in the winding up of a company shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the court in cases within its ordinary jurisdiction. Therefore under that provision, an appeal can be made to this court against an order for the winding up of a company.

 

Where there is a right of appeal it is implicit that there is also a right to make any incidental application in respect of a pending appeal to this court. The authority for this is to be found in s 44(1) of the Court of Judicature Act 1964 itself which reads as follows:

 

In any proceeding pending before the Supreme Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered

 

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may at any time be made by a Judge of the Supreme Court.

 

In Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105, it was held, inter alia, that notwithstanding the appointment of the provisional liquidator and the general assumption by him of the company’s powers, the board still retained certain residuary powers which included authority to instruct solicitors and counsel to oppose the petition and, if a winding-up order is made, to appeal against the order. In that case it was also held that the power to instruct solicitors and counsel is not the power which any one could suggest has passed to the provisional liquidator. At p 1113, Plowman J said:

 

The issue is to the extent of those residuary powers, and in particular whether they extend to the launching of the present motion. I think that it may sometimes be helpful to test the matter by considering the other side of the coin, namely to enquire whether the power which the board is said to have lost is one which can be said to have been assumed by the liquidator. If the answer is that it cannot, that may be a good reason for saying that the board still retains it. Clearly, for example, as I have already indicated, the power to instruct solicitors and counsel on the hearing of the winding-up petition is not a power which anyone could suggest has passed to the provisional liquidator and therefore the board retains it. If that is true in regard to the petition itself, it is, in my judgment, equally true of interlocutory proceedings which are such that it would not be appropriate for the provisional liquidator to give instructions on behalf of the company.

 

Plowman J’s decision found support in the Supreme Court of Victoria, Australia (where our Companies Act 1965 came from) in Brinds Ltd & Ors v Offshore Oil NL & Ors (1985) 10 ACLR 242 where in the judgment of that court the following passage appears:

 

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During the argument, I raised the question whether the applicant, Brinds Ltd, having been in liquidation since December 1983 and throughout apparently insolvent, had any locus standi to make, itself, this application for a stay, as distinct from on the one hand, such an application made by or with the consent of the liquidator and, on the other hand, a different application by others under s 383 of the Code.

 

Since then, the researches of Nicholson J have discovered that ingenious counsel in 1879 raised the question and put the negative answer to the Court of Appeal in England in Re Diamond Fuel Co (1879) 13 Ch D 400 – see especially pp 404-405. Nearly 100 years later, in Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105 at pp 1112-1113, Plowman J suggested what I think are substantial reasons for an affirmative answer and, in any event, I think this court should proceed on the footing that the directors of Brinds Ltd have power to bring the present application inthe name of the company. See also McPherson Company Law (2nd Ed) p 394 et seq.

 

Re Diamond Fuel Company (1879) 13 Ch D 400 is also authority for the proposition that, despite the fact a liquidator had been appointed, a residual power of appeal remains vested in the directors.

 

After a winding-up order is made, generally speaking no one but the liquidator can act on behalf of the company. But it is quite clear that the company has a right to be heard to say that the winding-up order is wrong and to appeal against the order. In our case it is expressly provided in s 253(2) [CA]. The only question is who should move the appeal on behalf of the company.”

 

(emphasis added).

 

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58. Section 253(2) CA states as follows:

 

“ 253(2) Subject to the rules an appeal from any order or decision made or given in the winding up of a company shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction.”

 

(emphasis added).

 

59. The above ruling in Sri Hartamas Development Sdn Bhd regarding the residual power of a wound up company’s directors to appeal to the Court of Appeal against the winding up order or to apply to set aside the winding up order, has been affirmed in the following 3 Court of Appeal judgments:

 

(a) Shankar JCA decided as follows in Taman Sungai Dua Development Sdn Bhd (previously known as Supershine (M) Sdn Bhd) v Goh Boon Kim [1997] 2 MLJ 526, at 531 and 532533 –

 

“But before us on the day of hearing, the provisional liquidators were absent. The petitioner had not filed any affidavit in opposition to the application either. Instead, his counsel decided to stake his entire resistance on one point taken by way of a preliminary objection.

 

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This was that the directors of the company ceased to have any capacity to instruct solicitors to make this application once the provisional liquidators were appointed. Therefore, it was submitted that the application was not properly filed before the court and should be dismissed.

 

We agree with Mr Gan Teik Chee of counsel for the company that the better authority is Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1991] 3 MLJ 325 by which we are bound. At p

 

326, Hashim Yeop A Sani CJ (Malaya) said:

 

In the present case, the winding-up order had not yet been made and there is a short passage in Australian Company Law para 372/11 which reads:

 

All the powers of the directors shall cease

 

A reference to the powers of directors was made in Re Standhill Consolidated Ltd [1967] VR 749 at pp 753754. An issue as to the extent of any residuary powers in directors after the appointment of a liquidator arose in Re Union Accident Insurance Co Ltd [1972] 1 All ER 1105; [1972] 1 WLR 640 where at pp 1113 and 642 respectively, Plowman J said: ‘It is of course well-settled that on a winding up, the board of directors of a company becomes functus officio and its powers are assumed by the liquidator, and my attention was drawn to Re Mawcon Ltd [1969] 1 All ER 188 at p 192; [1969] 1 WLR 78 at p 82, where Pennycuick J stated in effect that the appointment of a provisional liquidator had the same result. No doubt that is so, but it is common ground that notwithstanding the appointment of a provisional liquidator, the board has some residuary powers, for example, it can unquestionably instruct solicitors and counsel to oppose the current petition and, if a winding-up order is made, to appeal against that order.’

 

47

 

Notwithstanding appointment of a provisional liquidator, the directors retained power to have the company represented in the winding-up proceedings: Re Laverton Nickel NL (1979) 3 ACLR 945.

 

In the face of such authorities, we considered the preliminary objection devoid of merit and dismissed it with costs .”

 

(emphasis added);

 

(b) in Fairview Schools Bhd v Indrani a/p Rajaratnam (No 1) [1998] 1 MLJ 99, at 106 and 108 [Fairview Schools Bhd (No 1)], Shankar JCA held as follows –

 

“For ourselves, we would give a liberal interpretation to s 253(2) [CA] which reads as follows:

 

In Sri Hartamas Development Sdn Bhd v MBf Finance Bhd [1991] 3 MLJ 325, Hashim Yeop A Sani CJ after reviewing the authorities said at p 327:

 

This decision was applied in Taman Sungai Dua Development Sdn Bhd v Goh Boon Kim [1997] 2 MLJ 526. Re Mawcon Ltd [1969] 1 All ER 188 and Re Laverton

 

Nickel NL [1997] 3 ACLR 945 are also useful.

 

For the avoidance of any doubt, we state here that the omission of the company to obtain a stay of the winding-up

 

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order under s 243 [CA] in no way limits the residual powers of the directors to prosecute an appeal ”

 

(emphasis added); and

 

(c) Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248, at 255.

 

60. Based on s 253(2) CA as interpreted in Sri Hartamas Development Sdn Bhd, Taman Sungai Dua Development Sdn Bhd, Fairview Schools Bhd (No 1) and Maril-Rionebel (M) Sdn Bhd, the

 

Company’s directors have residual power to –

 

(a) apply to the Court of Appeal for an extension of time under r 12 of the Rules of the Court of Appeal 1994 (RCA) to appeal to the Court of Appeal against the Winding Up Order;

 

(b) apply to the Winding Up Court to set aside the Winding Up Order; or

 

(c) file a fresh suit to set aside the Winding Up Order.

 

I will discuss later in this judgment regarding the procedure to challenge the validity of a sealed order or judgment.

 

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61. It is clear from s 253(2) CA and the above cases that a wound up company’s directors have the residual power to apply to set aside the winding up order. There is nothing in law to prevent the Plaintiffs in this case from exercising their powers as the Company’s directors to file the OS in the Company’s name. The Plaintiffs have not cited any case which allows the Plaintiffs to file the OS in their personal capacity. Accordingly, for the 2 reasons expressed above, the Plaintiffs have no locus standi to file the OS in this case. On this ground alone, the OS should be dismissed.

 

K. Grounds to invalidate perfected court order or judgment

 

62. My understanding of Malaysian case law is that when there is no appeal to the Court of Appeal against a sealed order or judgment of the High Court, such a perfected order or judgment can only be subsequently set aside by the High Court in the exercise of its inherent jurisdiction [either by the same court (which has granted the earlier order or judgment) or by another court] in rare and exceptional circumstances (Vitiating Circumstances).

 

K1. Court order or judgment is made without jurisdiction

 

63. In my view, the first set of Vitiating Circumstances is when the court in question does not have jurisdiction, competence or power to make the order or judgment. The following cases are relevant:

 

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(a) in the Federal Court case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75, at 92-93, Azmi FCJ decided as follows –

 

“It is of course settled law as laid down by the Federal Court in Hock Hua Bank case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not in issue and therefore not discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v. Robertson [1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order he will make ”

 

(emphasis added).

 

The above judgment by Azmi FCJ was concurred by Eusoff Chin CJ and Wan Adnan Ismail FCJ (as he then was) in Badiaddin, at p. 97;

 

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(b) in Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, Abdoolcader J (as he then was) delivered the Federal Court’s judgment to set aside an order of the then Collector of Land Revenue (CLR) which had purportedly cancelled an earlier order for sale of charged land made by the CLR’s predecessor. According to the Federal Court in Eu Finance Bhd, at p. 39-40 –

 

“ There is no power in the Collector to cancel an order made under section 263 [NLC] or the sale to be effected thereby.

 

The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon – in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent. In Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729, 736, Lord Diplock L.J. (now a Law Lord) said (at page 736) that ‘it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside’.

 

Where a decision is null by reason of want of jurisdiction, it cannot be cured in any appellate proceedings; failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. The party affected by the decision may appeal ‘but he is not bound to (do so), because he is at liberty to treat the act as void’ [Birmingham (Churchwardens and Overseers) v Shaw (1849) 10 QB 868 880; 116 ER 329 at page 880 (per Denman C.J.)]. In Barnard v National Dock Labour Board [1953] 2 QB 18, 34 it was said that, as a notice of suspension made by the local board was a nullity, ‘the fact that there was an unsuccessful appeal on it cannot turn that which was a nullity into an effective suspension’

 

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(at page 34 per Singleton L.J.). Ridge v Baldwin [1964] AC 40 is to the same effect.

 

Lord Denning said in Director of Public Prosecutions v Head

 

[1959] AC 83 (at page 111) that if an order was void, it would in law be a nullity and there would be no need for an order to quash it as it would be automatically null and void without more ado. Lord Denning as Master of the Rolls so held too in Regina v Paddington Valuation Officer & Anor, Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 (at page 402). The judgment of this court in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 refers (at page 157) to the decision of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189 and a passage in the judgment of the Lord Chancellor, Lord Hailsham of St. Marylebone (at page 189) where he refers to a spectrum of possibilities as the legal consequence of non-compliance with statutory requirements and speaks of one extreme where there has been such an outrageous and flagrant violation of a fundamental obligation that what has been done may be safely ignored and treated as having no legal consequence and in the event of any reliance sought thereon the party affected is entitled to use the defect simply as a shield or defence without having taken any positive action of his own.

 

The decision of this court in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Berhad [1981] 1 MLJ 234 to the effect that section 418 which provides for an appeal is the exclusive remedy of an aggrieved person or body against a decision inter alia of a Collector of Land Revenue and precludes any claim for declaratory relief, on which the respondent seeks to rely, has no application to the present proceedings as the decision sought to be impugned in that case was made within jurisdiction and was not a nullity. We reiterate the second order in the matter before us is invalid and wholly dehors the provisions of the Code and no appeal is therefore essential or necessary to impugn its validity and it can be subject to collateral attack in the instant proceedings.”

 

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(emphasis added).

 

The Federal Court’s judgment in Eu Finance Bhd has been affirmed on appeal by the Privy Council in Lim Yoke Foo v Eu Finance Bhd [1985] 1 MLJ 17. According to Lord Brightman who delivered the Privy Council’s opinion in Lim Yoke Foo, at p. 19-20

 

“The Federal Court decided that there was no power under the National Land Code for a Collector to cancel an order for sale made under section 263(1).Therefore the 1976 order remained on foot and the 1979 order was “no order at all within and for the purposes of section 263 and is a nullity and devoid of any effect”. The only powers of the Collector, once the 1976 order had been made, were to postpone the date of sale if expedient under section 264(3), or to correct verbal errors or remedy accidental defects or omissions, if not matters of substance, pursuant to section 33.

 

Their Lordships respectfully agree with the decision and reasoning of the Federal Court ”

 

(emphasis added).

 

It is to be noted that the material facts in Eu Finance Bhd concerned an order made by the CLR (now Land Administrator under the NLC) and does not involve a court order or judgment;

 

(c) in Teng Foh t/a Teng Foh Construction v Liwu Realty Sdn Bhd

 

[1989] 2 MLJ 425, at 426 –

 

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(i) the petitioner had obtained a default judgment against the respondent company in a civil suit;

 

(ii) based on the default judgment, the petitioner filed a winding up petition against the respondent company;

 

(iii) before the hearing of the respondent company’s application to set aside the default judgment in the civil suit, the petitioner withdrew the suit against the respondent company. The petitioner’s learned counsel however still applied to the High Court to wind up the respondent company (in the absence of the learned counsel for the respondent company) and the respondent company was thereby ordered to be wound up; and

 

(iv) the respondent company applied successfully to LC Vohrah J in the winding up court to set aside its earlier winding up order as the petitioner had already withdrawn his suit against the respondent company. The High Court therefore had no jurisdiction under s 218(1)(a) to (n) CA to wind up the respondent company when the petitioner’s suit against the respondent company had been withdrawn and the petitioner could no longer rely on the default judgment as a basis for the winding up petition against the respondent company; and

 

(d) in Panaron Sdn Bhd v Univac Switchgear Sdn Bhd [2014] 6 AMR 432, [2014] 2 AMCR 806, [2015] 2 CLJ 286, [2015] 9 MLJ 498, sitting as a winding up judge, I set aside an earlier winding up order of the respondent company made by the Kuala Lumpur winding up court because –

 

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(i) prior to the winding up of the respondent company by the the Kuala Lumpur High Court, the respondent company had already been wound up by the Shah Alam High Court (Shah Alam Winding Up Order); and

 

(ii) I set aside an earlier sealed winding up order of the respondent company by the Kuala Lumpur High Court on the ground that the Kuala Lumpur High Court lacked jurisdiction under s 218(1)(a) to (n) CA to wind up the respondent company (due to the Shah Alam Winding Up Order).

 

64. In respect of the High Court’s lack of jurisdiction, competence or power to make a particular order or judgment, s 44 of the Evidence Act 1950 (EA) is relevant. Section 44 EA provides as follows –

 

“Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion.”

 

(emphasis added).

 

A party may challenge the validity of a perfected order or judgment under s 44 EA on the ground that the court in question is “not competent to deliver” the order or judgment.

 

65. I have decided earlier in EON Bank Bhd v Sri Tanjong Travel Sdn

 

Bhd & 3 Ors [2014] 5 AMR 693, at 701, that whether a court has the jurisdiction, competence or power to make an order or judgment under

 

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a statutory provision, is a question of construction of the statutory provision.

 

66. When a court does not have jurisdiction, competence or power to make an order or judgment –

 

(a) parties cannot consent, elect, waive or acquiesce to the jurisdiction of the court. This is clear from the following cases –

 

(i) the Federal Court’s judgment in Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ 413, at 421, delivered by Gopal Sri Ram JCA (as he then was); and

 

(ii) EON Bank Bhd, at p. 701;

 

(b) the doctrine of functus officio does not bar the setting aside of a perfected court order or judgment which has been made without jurisdiction. In the Federal Court case of Badiaddin, at p. 117, Gopal Sri Ram JCA’s (as he then was) decided as follows –

 

“It is therefore clear, in light of the principles established by high authority, that a court of unlimited jurisdiction, even in the absence of an express enabling provision, has inherent power to set aside its orders made in breach of written law. The ends of justice will not be met if such a power did not exist. And the procedural branch of the broad and flexible doctrine of estoppel known as res judicata finds no place in such a circumstance. Neither has the functus officio theory, which, upon close examination is merely part and parcel of the doctrine of res judicata, any role to play in the case.”

 

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(emphasis added);

 

(c) the doctrines of estoppel and res judicata do not bar an application to set aside a sealed order or judgment made by a court without jurisdiction – Gopal Sri Ram JCA’s (as he then was) judgment in the Federal Court case of Badiaddin, at p. 117; and

 

(d) delay, procedural non-compliance and/or inequitable conduct by an applicant (to set aside a perfected order or judgment on the ground of lack of court’s jurisdiction) does not bar the applicant -EON Bank Bhd, at p. 701.

 

K2. Contravention of mandatory statutory prohibition

 

67. A perfected court order or judgment may be set aside if it has been obtained in contravention of a mandatory statutory prohibition. This constitutes the second set of Vitiating Circumstances as is clear from the following judgments –

 

(a) in the Federal Court case of Badiaddin, at p. 113, Gopal Sri Ram JCA (as he then was) decided as follows –

 

“It is one thing to say that an order of a court of unlimited jurisdiction must be obeyed until it is set aside. It is quite a different thing to say that a court of unlimited jurisdiction may make orders in breach of written law. Isaacs v. Robertson is certainly not authority for the latter proposition. I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order

 

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of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal.”

 

(emphasis added); and

 

(b) Badiaddin has been approved by the Court of Appeal in Selvam Holdings (Malaysia) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd; BSN Commercial Bank Malaysia Bhd & Ors (Interveners) [2000] 3 CLJ 16 (Selvam Holdings). In Selvam Holdings, at p. 24 and 26, Siti Norma Yaacob JCA (as she then was) held as follows –

 

“Badiaddin’s case, we say, extended the scope and extent of the inherent and discretionary jurisdiction of a court with unlimited jurisdiction to set aside an earlier order in the following two circumstances:

 

(1) where the earlier order had contravened a substantive statutory prohibition so as render the earlier order defective on the ground of illegality or lack of jurisdiction and

 

(2) where in exceptional cases, the justice of the case requires the court to intervene and correct an earlier

 

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order that contains a serious defect and there is a need to have it set aside.

 

Additionally the Federal Court held that the “discretion to invoke the inherent jurisdiction should also be exercised in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice”.”

 

(emphasis added).

 

K3. Breach of second rule of natural justice

 

68. A third set of Vitiating Circumstances occurs when there has been a breach of the second rule of natural justice, namely when a party has been deprived of his or her right to be heard before an order or judgment is pronounced. Such a situation is illustrated in the following cases –

 

(a) in Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374, at 379-380, the appellants were owners of land charged to the first respondent bank. The first respondent bank had applied for an order for sale of the charged land (Charge Action). The hearing of the Charge Action had been postponed to another date but the appellants were not informed of such a date. Hence, the High Court ordered the sale of the appellants’ land in the appellants’ absence (Sale Order). The appellants applied to

 

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the High Court to set aside the Sale Order but this application was dismissed by the High Court. On appeal, the Federal Court reversed the High Court’s decision and set aside the Sale Order. According to Edgar Joseph Jr FCJ, at p. 381-382 and 383 –

 

“The Natural Justice Point: audi alteram partem

 

The second point I should like to take is the natural justice point.

 

Counsel for the chargors had contended that neither of his clients had been served with notice of the adjourned hearing of the originating summons, when the ex parte orders had been made, and as a result, were absent, and that they were thereby deprived of the opportunity of being heard, contrary to the requirements of O 83 r 2(4) the RHC 1980.

 

In my view, even if counsel for the chargees were correct in his description of the nature of the reliefs prayed for by the chargees in their originating summons – though, in point of fact, he was not – this would not have relieved the chargees of their duty to serve notice of the adjourned hearing of the originating summons on the chargors because I consider that O 83 r 2(4) has a common law content. In other words, in my view, O 83 r 2(4) is merely a statutory enunciation of the fundamental rule of natural justice as expressed in the Latin maxim audi alteram partem (hear the other side) so that the obligation to serve notice of the adjourned hearing of the originating summons remained even if O 83 r 2(4) did not apply. It is a familiar canon of statutory interpretation that unless a contrary intention appears, an enactment by implication imports the principle of the maxim audi alteram partem.

 

Effect of Non-Service of Notice of Adjourned Hearing

 

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The fourth point I should like to take concerns the contention by counsel for the chargees that the effect of a breach of the rule of natural justice by reason of failure to serve the chargors or either of them with notice of the adjourned hearing was merely to render the ex parte orders an irregularity which, having regard to the circumstances of this case, should be condoned.

 

In my view, the effect of failure on the part of the chargees to notify the chargors of the date of the adjourned hearing was of such fundamental importance as to render each and every one of the ex parte orders obtained, in consequence, a nullity.”

 

(emphasis added); and

 

(b) the Court of Appeal held as follows in Selvam Holdings, at p. 24 and 26 –

 

Then in 1982, following Eu Finance Bhd. v. Lim Yoke Foo [1982] 2 MLJ 37, another category of cases was added to the aforesaid list. These cases refer to orders that have been obtained in breach of the rules of natural justice as such orders are nullities and they can be successfully attacked in collateral proceedings ex debito justitiae.

 

Since they have established their interests in the outcome of the originating summons and such interests have not been disputed, the fact that they have not been cited as parties in the proceedings and that the 1993 order was obtained without their knowledge have deprived them of their right to be heard on their interests. This is a breach of the rules of natural justice and following Eu Finance Berhad’s case (supra), the 1993 order is a nullity and can be successfully attacked in collateral proceedings ex debito justitiae.”

 

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(emphasis added).

 

K4. Court order or judgment has been obtained by fraud or collusion

 

69. The fourth set of Vitiating Circumstances is when a perfected order or judgment has been obtained by way of fraud or collusion as stated in s 44 EA. I refer to the following cases:

 

(a) the Court of Appeal’s judgment given by Gopal Sri Ram JCA (as he then was) in Chee Pok Choy & Ors v Scotch Leasing Sdn

 

Bhd [2001] 2 CLJ 321, at 334-336, as follows –

 

“I think I may begin this part of the case by referring to s. 44 [EA]. …

 

The principle then to be culled from the authorities is that a judgment may be impeached for deliberate fraud practised upon the court, and it is insufficient to show that a litigant merely convinced the court through misleading or erroneous evidence. Whether the test has been met in any given case must, I think, depend on the facts and circumstances of the particular case.”

 

(emphasis added); and

 

(b) the Court of Appeal held as follows in Selvam Holdings, at p. 24 –

 

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“Despite the above restrictions, an aggrieved party can still impeach a regularly drawn up order but only in a fresh suit brought to attack the order on the grounds that such an order had been obtained by fraud or that fresh evidence, not available at the trial or hearing, had since surfaced that may affect the order.”.

 

(emphasis added).

 

K5. Breach of first rule of natural justice

 

70. There is a fifth set of Vitiating Circumstances – a perfected court order or judgment may be impugned on the ground of biasness. I refer to the following English cases:

 

(a) the judgments of Lords Browne-Wilkinson, Goff, Hope and Hutton in the House of Lords case of R v Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No 2)

 

[1999] 1 All ER 577; and

 

(b) the English Court of Appeal’s decision given by Woolf CJ in Taylor & Anor v Lawrence & Anor [2002] 3 All ER 353.

 

K6. Are there other grounds to invalidate perfected court order or judgment?

 

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71. I am of the view that the above Vitiating Circumstances are not exhaustive. The court may recognize a “new’ set of Vitiating Circumstances in an appropriate case so as to do justice and/or prevent injustice. I rely on Zaki Tun Azmi PCA’s (as he then was) judgment in ASEAN Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (M) Bhd [2008] 6 CLJ 1, at 14 and 16, in respect of the Federal Court’s inherent powers under rule 137 of the Rules of the Federal Court 1995 to review the previous decisions of the Federal Court –

 

“Inherent Jurisdiction

 

[36] What then is the meaning of inherent jurisdiction? According to the Concise Oxford Dictionary, “inherent” means “existing in something, esp. as a permanent or characteristic attribute.” In the context of the law, that inherent jurisdiction is deemed to be part of the court’s power to do all things reasonably necessary to ensure fair administration of justice within its jurisdiction subject to valid existing laws including the Constitution. In other words, that inherent power is found within the very nature of a court of law, unlike power conferred by statute.

 

[41] These are but just instances where the court has exercised its discretion to invoke r. 137. There may be many other instances where r. 137 may apply as can be seen from Civil Procedure books where High Courts exercise their inherent jurisdiction to prevent injustice or abuse of the process of the court. By the very meaning of “inherent”, as discussed earlier, it is not

 

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wise to even attempt to list out the other instances where this court should exercise such discretion. It is best to leave the question open and decide the applications as they come before this court. Inherent jurisdiction is not something conferred by the statute but which it has by its very nature of being a court to enable it to do justice and prevent injustice ”

 

(emphasis added).

 

72. In Woolley Development Sdn Bhd v Stadco Sdn Bhd (No 1) [2011] 6 MLJ 111, at 114 and 120, the Court of Appeal in a judgment given by Abdul Malik Ishak JCA, set aside part of a judgment of the High Court against the appellant/second defendant (Impugned Part) on the ground that “it is plain and obvious that the [Impugned Part] … ought to be set aside ex debito justitiae as against the second defendant because it is so uncertain that it amounts to a nullity’.

 

L. Procedure to invalidate sealed court order or judgment

 

73. Firstly, I reject the Defendant’s contention that the Plaintiffs should have applied under s 243(1) CA to stay the Winding Up Order. Section 243(1) CA reads as follows:

 

“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 ought to be stayed, make

 

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an order staying the proceedings either altogether or for a limited time on such terms and conditions as the Court thinks fit ”

 

It is clear that s 243(1) CA is not relevant to the question of whether the Winding Up Order should be set aside on the ground that the Petition has not been served on the Company’s registered office at Malacca Address. Nor is s 243(1) CA pertinent to the procedure to set aside the Winding Up Order.

 

74. In respect of the Defendant’s submission that the Plaintiffs should have appealed to the Court of Appeal against the Winding Up Order, I rely on the Court of Appeal’s judgment in Selvam Holdings, at p. 24 and 2627, as follows:

 

“Under the aforesaid circumstances, a court is seised with the necessary jurisdiction to entertain an application to set aside the earlier order ex debito justitiae. Expressed in another way there is no need to adopt the appeal procedure nor to file a fresh suit to set aside the defective order. That can be done in the same proceedings where the impeached order was granted and before the same judge or another judge with concurrent jurisdiction.

 

In this regard, the conduct of the appellant is most relevant and most telling. The originating summons was filed whilst the originating motion before Abdul Aziz Mohamad J was part heard pending decision. Both summonses seek remedies that have the same effect. The originating summons was heard two weeks after it was filed, thereby stealing a march on the originating motion.

 

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We say that the appellant’s behaviour is highly questionable and that of their solicitors most unprofessional. Under these circumstances we consider that filing a fresh action to set aside the 1993 order is an exercise in futility as it is counter productive and it will be adding another suit to an already long list of actions relating to the same subject matter. One need only read the judgment of the trial judge to appreciate the numerous suits and summonses filed by the appellant following their non-acceptance of the winding up order as they contend that they were not the entity affected by the order. But they had not appealed against that order. Instead they filed the originating motion which has since been decided by Abdul Aziz Mohamad, J. Again no appeal had been lodged by the appellant in that originating motion. This later judgment runs contrary to the 1993 order and whilst we appreciate that a court is not bound by a decision of another court exercising concurrent jurisdiction, nonetheless the appellant are now placed in the most anomalous position in that there are two existing and conflicting orders as to their legal status. Since the appellant had not appealed against both orders, the interveners have provided the alternative whereby the appellant’s legal status can be finally resolved.

 

Under these circumstances we consider that the justice of the case entitles the interveners to apply to set aside the 1993 order ex debito justitiae in the same proceedings in which the 1993 order was made and further that the High Court was not functus officio to hear and determine such application under its inherent jurisdiction and we so hold.”

 

(emphasis added).

 

75. Based on Selvam Holdings, a party may adopt the following procedure to set aside a perfected order or judgment of a High Court:

 

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(a) appeal to the Court of Appeal against the High Court order or judgment. When the one month time period for appeal to the Court of Appeal has lapsed, an application to the Court of Appeal for an extension of time to appeal under r 12 RCA is necessary;

 

(b) apply to the same court (which has granted the order or judgment) to set aside the order or judgment; or

 

(c) file a fresh suit in the same court or another court to set aside the order or judgment in question

 

(3 Options).

 

According to Selvam Holdings, which of the 3 Options to be adopted by a party in a particular case, depends on the justice of the case. In Selvam Holdings, at p. 26-27, the Court of Appeal decided, among others, that the fresh suit filed by the appellant to set aside an earlier winding up order, was “an exercise in futility as it is counter productive and it will be adding another suit to an already long list of actions relating to the same subject matter’.

 

76. There may be a fourth option to challenge the validity of a sealed order or judgment. A defendant in a suit may raise a defence that a perfected order or judgment is null and void due to the existence of any one of the Vitiating Circumstances.

 

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77. I am of the opinion that a fresh action (Fresh Suit) need not be filed and the Company (not the Plaintiffs) may file an application in the Winding Up Court to set aside the Winding Up Order. I use the word “may’ because I will elaborate later in this judgment why no relief should be granted to the Company despite a breach of r 25(1) WUR in this case. My view is premised on the following reasons:

 

(a) the Company may have creditors (Creditors) who are not made defendants in the Fresh Suit. The Creditors may be adversely affected by the Fresh Suit and if the Creditors are not cited as parties in the Fresh Suit, the Creditors have to apply to intervene in the Fresh Suit under Order 15 rule 6(2)(b)(i) and/or (ii) RC. In Selvam Holdings, the respondents applied successfully to intervene in the fresh action filed by the appellant to set aside an earlier winding up order.

 

If an application is filed in the Winding Up Court to set aside the Winding Up Order (Setting Aside Application), the Winding Up Court may direct the Setting Aside Application to be served on all the Creditors under r 17(1) WUR and upon such a service, the Creditors are entitled to be heard in respect of the Setting Aside Application without a need to apply to intervene in the winding up proceedings. Rule 17(1) WUR provides as follows –

 

“Subject to any order to the contrary, every petition, notice of motion and summons shall be served upon every person

 

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against whom any order or other relief is sought but the Court may at any time direct that service be effected or notice of proceedings be given to any person who may be effected by the order or other relief sought and may at any

 

time direct the manner in which the service is to be effected or the notice given; and any person so served or notified shall be entitled to be heard ”

 

(emphasis added);

 

(b) if the Creditors are not made co-defendants in the Fresh Suit, the Creditors themselves may subsequently challenge any order or judgment made in the Fresh Suit. Accordingly, in the interest of finality in litigation, the Setting Aside Application should have been made in the Winding Up Court; and

 

(c) the Winding Up Order was given on 8.9.2014. The OR as the Company’s liquidator would have presumably carried out the Company’s liquidation. If the Setting Aside Application is filed in the Winding Up Court, the Winding Up Court may seek the assistance of the OR as the Company’s liquidator to inform the court on whether the Company’s directors have been guilty of any breach of fiduciary, Common Law and/or statutory duty in respect of the management of the Company. In this case, the Plaintiffs did not even cite the OR as a co-defendant!

 

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78. It is to be noted that in the following cases, a Setting Aside Application has been filed in the Winding Up Court:

 

(a) UMBC’s Case, at p. 387;

 

(b) MUI Bank Bhd, at p. 292;

 

(c) Teng Foh, at p. 426; and

 

(d) in the unreported High Court case of Kumpulan CMC Enterprise Sdn Bhd v Machang Indah Development Sdn Bhd [2010] 1 LNS 7, K. Anantham JC (as he then was), sitting as a winding up judge, dismissed an application by the respondent company’s unsecured creditor to stay or to set aside an earlier winding up order.

 

79. In view of the above reasons, I find that the justice of this case does not require a Fresh Suit to be instituted but instead, a Setting Aside Application should have been filed in the Winding Up Court. On this ground alone, this court should dismiss the OS.

 

M. Effect of breach of 2 rules of natural justice

 

80. It has been decided in Muniandy and Selvam Holdings that a sealed order or judgment may be set aside ex debito justitiae on the ground of breach of the second rule of natural justice. This is understandable as

 

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the facts in both Muniandy and Selvam Holdings clearly justify the setting aside of the orders in question –

 

(a) in Muniandy, the High Court’s Sale Order of the appellants’ charged land should be invalidated because the appellants were not present at the adjourned hearing of the Charge Action. If the Sale Order was not set aside, there would be a clear injustice to the appellants who would be permanently deprived of their land; and

 

(b) in Selvam Holdings, the appellant had obtained a High Court order in a Fresh Suit to set aside an earlier winding up order without citing the respondents as parties in the Fresh Suit (Setting Aside Order). As explained in Selvam Holdings, the respondents were clearly prejudiced by the Setting Aside Order. Accordingly, the High Court in Selvam Holdings allowed the respondents to intervene in the Fresh Suit and further allowed the respondents to set aside the Setting Aside Order (this decision of the High Court was subsequently affirmed by the Court of Appeal).

 

81. In Annie Quah Lay Nah v Syed Jafer Properties Sdn Bhd & Ors

 

[2007] 1 CLJ 1, at 10 and 11, Gopal Sri Ram JCA (as he then was) decided as follows in the Court of Appeal:

 

“[11] Mr. Kirubakaran of counsel for the second respondent

 

in the first appeal, whose submissions were adopted

 

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by counsel for the other respondents argued that the order of 30 November 1993 is a nullity because the notice of discontinuance brought the enforcement proceedings to an end so that there was no cause in which Abu Mansor J could make an order. In support of this submission he relied on Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75. But that authority does not assist him as this is not a case where there has been a breach of the rules of natural justice or a contravention of a statute which is a sine qua non to invoke the very limited jurisdiction of a court to have its orders declared as void.

 

[12] On the facts of the present case there was, at best, non-compliance of a rule of court: not of a substantive statutory provision. Hence, the principle contended for by the second respondent in the first appeal has no application to the facts of the present instance. I must hasten to add that I have used the expression “at best” advisedly because it does not lie in the mouths of the relevant respondents in the first appeal to assert that the notice of discontinuance was intended to be acted upon by any of them for the reasons discussed earlier

 

(emphasis added).

 

82. The Court of Appeal recognized in Annie Quah Lay Nah that there may be a breach of the second rule of natural justice in a case which has not occasioned any injustice. Accordingly, despite the

 

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contravention of the second rule of natural justice, the court may nevertheless decline to set aside an earlier order or judgment when there has been no failure of justice.

 

83. The Singapore Court of Appeal in Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2010] SGCA 39 (Lee Tat Development) distinguishes the effect of a breach of the first rule of natural justice from the consequences which flow from a contravention of the second rule of natural justice. Chan Sek Keong CJ decided as follows in Lee Tat Development, at paragraphs 58-66:

 

“The issues to be decided in this appeal

 

[58] In view of the reliefs sought by the MC [Management Corporation] in the Present Action, there are two questions which we have to decide in this appeal, namely:

 

(a) whether the CA [Court of Appeal] has statutory jurisdiction under s 29A of the SCJA [Supreme Court of Judicature Act] and/or inherent jurisdiction to reopen and set aside a decision which it made in breach of natural justice and rehear the matters dealt with in that decision; and

 

(b) if the CA has the aforesaid jurisdiction, whether the declarations sought by the MC in the Present Action should be granted.

 

[59] We shall hereafter refer to these two questions as “Question (a)” and “Question (b)” respectively.

 

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Question (a)

 

[60] We can answer Question (a) quickly. In our view, the CA has inherent jurisdiction to reopen and rehear an issue which it decided in breach of natural justice as well as to set aside (in appropriate cases) the whole or part of its earlier decision founded on that issue. If the CA (or, for that matter, any other court) has decided an issue against a party in breach of natural justice, it cannot be said that the CA was fully apprised or informed at the material time of all the relevant considerations pertaining to that issue, and, therefore, the CA cannot be said to have applied its mind judicially to that issue. In other words, the CA would not have exercised its jurisdiction properly vis-à-vis that issue, and, therefore, it cannot to be said to be functus officio in the sense of having exhausted its power to adjudicate on that issue. Nothing in the SCJA prescribes for this situation, and we see no justification to circumscribe the inherent jurisdiction of this court (which would be the effect if we were to rule that the CA has no inherent jurisdiction to reopen an issue which it decided in breach of natural justice) as that could potentially result in this court turning a blind eye to an injustice caused by its own error in failing to observe the rules of natural justice.

 

[61] A breach of natural justice, whether involving a breach of the bias rule or a breach of the hearing rule, is basically a procedural wrong because it denies the aggrieved party a full, fair and impartial hearing. Of course, not every breach of natural justice is equally serious. For this reason, we agree with the Judge that there are “different grades of procedural wrongs” (see the First Instance Judgment at [9] (reproduced earlier at [39] above)), and that not every procedural wrong entitles the aggrieved party to be reheard and/or to have a final judgment set aside.

 

[62] As a matter of principle, where a decision is made in breach of the bias rule, that decision must be set aside and the matters dealt with therein reheard. A decision tainted by bias is a non-decision because it is not made by an impartial judicial mind, but is instead corrupted by the

 

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existence of a conflict of interest. Even apparent bias (as opposed to actual bias) is sufficient justification for a final judgment to be set aside ex debito justitiae (see Pinochet

 

(No 2) ([30] supra) as well as [9] of the First Instance Judgment) because if such a judgment is allowed to stand, that may affect public confidence in the Judiciary.

 

[63] However, the same consideration does not apply to a decision made in breach of the hearing rule. The authorities relied on by the MC – viz, Isaacs ([42] supra), Craig v Kanssen[1943] KB 256 and Kofi Forfie, Odikro of Marban v Barima Kwabena Seifah, Kenyasehene [1958] AC 59 – do not contradict this distinction between a breach of natural justice involving the bias rule and a breach involving the hearing rule.

 

[64] As a matter of principle, a breach of the hearing rule does not entail that the tainted decision must be set aside. Instead, it merely requires that:

 

(a) the aggrieved party be given, in appropriate cases, the opportunity to be heard on the issues on which he was not heard; and

 

(b) the court thereafter considers whether its previous decision was correct and, if it finds that that decision was not correct, either sets aside or rectifies (depending on what the circumstances of the case require) that decision (see further [60] below).

 

In other words, where the hearing rule is breached, the aggrieved party has a prima facie right to be heard on the matters on which he has not been heard, but only on those matters and not on any other matters in respect of which no allegation of breach of the hearing rule has been made. Natural justice does not require that the aggrieved party be over-compensated by being given more than what he claims he has been denied, ie, a fair hearing on the

 

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matters on which he was not heard. However, if a hearing on those matters will not change the ultimate outcome of the case (ie, if the aggrieved party will still lose the case even if he is given a hearing on the matters on which he was not heard), then the hearing would be in vain and an exercise in futility. In such a situation, the court would be entitled to exercise its discretion not to grant the aggrieved party a hearing on the matters on which he was not heard -as the Judge did in the court below on the ground that even if the 2008 CA’s decision were wrong, it should still be res judicata as between the MC and Lee Tat.

 

[65] Assuming that it is appropriate for the court to grant the aggrieved party a hearing on the issues on which he was not heard, the court has to go on to consider, after the hearing, whether to uphold, set aside or vary its earlier decision. In this regard, we find the following comments of this court pertinent even though they were made in the context of a breach of the hearing rule in arbitration proceedings (see Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 at [91]):

 

If … the same result could or would ultimately have been attained, or if it can be shown that the complainant could not have presented any groundbreaking evidence and/or submissions regardless, the bare fact that the arbitrator might have inadvertently denied one or both parties some technical aspect of a fair hearing would almost invariably be insufficient to set aside the award. [emphasis added]

 

[66] We should add that in cases where a decision made in breach of natural justice (whether involving the hearing rule or the bias rule) is to be set aside, only the tainted part of that decision needs to be set aside. The other parts of the decision which are not tainted by the breach of natural justice would still stand and would be binding on the parties concerned .”

 

(emphasis added).

 

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84. For the reasons given in Lee Tat Development, I accept that there is a difference between the consequences arising from a contravention of the first rule of natural justice and the effect of a breach of the second rule of natural justice. Such a difference is as follows:

 

(a) if there is a breach of the first rule of natural justice –

 

(i) the High Court must set aside –

 

(1) the earlier order and judgment of the High Court; or

 

(2) the relevant part of the order or judgment

 

– which has been made in contravention of the first rule of natural justice; and

 

(ii) the original dispute must be re-heard by the High Court;

 

(b) if the second rule of natural justice has been infringed, the High Court should decide whether the “ultimate outcome” of the case will be changed if the aggrieved party is given a right to be heard –

 

(i) if the court decides that the “ultimate outcome” of the case remains the same even if the aggrieved party is given a right to be heard on the matters which the aggrieved party has not been heard (Subject Matter of Complaint), the court should

 

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not exercise its discretion to hear the aggrieved party in respect of the Subject Matter of Complaint. In such an event, the court order or judgment continues to be valid and binding on the parties; and

 

(ii) if the court decides that the “ultimate outcome” of the case may be changed if the aggrieved party is given a right to be heard on the Subject Matter of Complaint –

 

(1) the court should allow the aggrieved party to be heard only on the Subject Matter of Complaint; and

 

(2) after hearing the aggrieved party only on the Subject Matter of Complaint, the court may decide to uphold, vary or set aside the order or judgment in question; and

 

(c) if a court order or judgment has been made in breach of the rules of natural justice (Breach), be it the first or the second rule –

 

(i) only the part of the order or judgment which is tainted by the Breach, is liable to be set aside; and

 

(ii) the other parts of the order or judgment which are untainted by the Breach, are still valid and binding on the parties.

 

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85. Based on Annie Quah Lay Nah and Lee Tat Development, I am not

 

inclined to hold that a mere breach of the second rule of natural justice will entitle an aggrieved party to set aside a sealed order or judgment ex debito justitiae.

 

N. Should Winding Up Order be set aside in this case?

 

86. Despite a breach of the mandatory r 25(1) WUR in this case (there was no service of the Petition on the Company’s registered office at Malacca Address and the Company was deprived of its right to oppose the Petition), I am of the view that the “ultimate outcome” of the Petition remains the same even if the Company has been afforded a right to be heard in respect of the Petition. This decision is premised on the following reasons:

 

(a) as explained in the above Part G, the Company still owed money to the Defendant under the Facilities. More importantly, despite proper service of the Statutory Demand on the Company’s registered office at the KL Address on 30.7.2012 (before the Company lodged Form 44 with SSM on 31.5.2013), the Company was unable to pay the Demanded Sum. Consequently, there arose a rebuttable presumption of the Company’s insolvency under s 218(2)(a) CA (Insolvency Presumption). The Company has the legal burden to rebut the Insolvency Presumption on a balance of probabilities. Unfortunately, the Plaintiffs have not adduced any credible evidence in this case to rebut the Insolvency Presumption; and

 

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(b) the Insolvency Presumption has been fortified by the following reasons –

 

(i) the Company does not own any asset;

 

(ii) there is no “ White Knight who will provide a capital injection of substantial funds or assets into the Company;

 

(iii) there is no indication that the Company will obtain a lucrative contract or project;

 

(iv) there is no financially viable business plan prepared by a competent and reputable financial consultant or accountant which will persuade this court that if the Winding Up Order is set aside, the Company is likely to be commercially solvent, if not profitable;

 

(v) in the Company’s Letter dated 10.6.2013, the Company itself had requested the Defendant to wind up the Company on, among others, the following grounds –

 

(1) the Company was dormant and had no future business plan to carry out; and

 

(2) the Company’s directors, namely the Plaintiffs, are above 68 years old and the Plaintiffs do not have the “ability’ to

 

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run the Company. In fact, the 2nd Plaintiff has admitted in paragraph 9.1 of the Plaintiffs’ second affidavit (affirmed on 18 May 2015) that the 2nd Plaintiff faces medical problems. This affidavit has exhibited the 2nd Plaintiff’s medical report; and

 

(vi) as early as Messrs MTS’s Letter dated 20.7.2007, the Company had offered a total sum of RM2.3 million to the Defendant as final settlement of the Company’s indebtedness under the Facilities with the condition that the Company be voluntarily wound up by the Company’s shareholders. It is clear that the Plaintiffs as the “controllers” or “alter ego” of the Company, have decided as early as 20.7.2007 to wind up the Company.

 

87. Based on Lee Tat Development and for reasons explained above, this court finds that the “ultimate outcome” of the Petition will not be changed even if the Company is given a right to oppose the Petition. In any event, there is no injustice to the Company because as early as Messrs MTS’s Letter dated 20.7.2007, the Plaintiffs have already decided to wind up the Company, albeit voluntarily. Accordingly, the Winding Up Order in this case should not be set aside due to a mere breach of the second rule of natural justice. As such, the OS is dismissed.

 

O. No costs should be awarded against Plaintiff

 

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88. Despite dismissing the OS in this case, this court has a discretion not to order “costs to follow the event’. This is clear from Order 59 rule 3(2) RC which reads as follows:

 

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs ”

 

(emphasis added).

 

89. In SDA Architects v Metro Millenium Sdn Bhd [2014] 3 CLJ 632, at 657, Hamid Sultan Abu Backer JCA held as follows in the Court of Appeal:

 

“ … (d) It is also well established whether in court proceedings or arbitration (i) it is not an inflexible rule that a successful party must be awarded his costs; (ii) justice may demand that the successful party should be deprived of the whole or part of his own costs. (See P Rosen & Co Ltd v. Dowley and Selby [1943] 2 All ER 172); …”

 

(emphasis added).

 

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90. As there has been a breach of r 25(1) WUR in this case by the Defendant and the Company has been consequently deprived of its right to oppose the Petition, it is only just that this court exercises its discretion under Order 59 rule 3(2) RC as follows:

 

(a) the Plaintiff need not pay costs for the dismissal of the OS to the Defendant; and

 

(b) each party should bear its own costs.

 

P. Court’s decision

 

91. In view of the above reasons, I am constrained to dismiss the OS with no order as to costs.

 

WONG KIAN KHEONG

 

Judicial Commissioner High Court (Commercial Division) Kuala Lumpur

 

DATE: 13 AUGUST 2015

 

Counsel for Plaintiffs: Mr. Goh What Sing (Messrs Bell & Lee)

 

Counsel for Defendants: Ms. Lian Shar Hoong (Messrs Albar & Partners)

 

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