Affin Bank Berhad(No. Syarikat 25046 – T) … PempetisyenDanBest Hectares Sdn Bhd(No. Syarikat: 336327 – M) … Responden

  

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‘INGGI MALAYA Dl KUALA LUMPUR AYAH PERSEKUTUAN, MALAYSIA

 

PENGGULUNGAN SYARIKAT NO: 28NCC-948-11/2012

 

Dalam perkara Seksyen 218(1)(e) Akta

 

Syarikat, 1965

 

Dan

 

Dalam perkara mengenai Best Hectares Sdn Bhd (Company No: 336327 – M)

 

ANTARA

 

AFFIN BANK BERHAD

 

(No. Syarikat 25046 – T) … Pempetisyen

 

DAN

 

BEST HECTARES SDN BHD

 

(No. Syarikat: 336327 – M) … Responden

 

JUDGMENT

 

Azizah Nawawi JC:

 

The Petition

 

[1] The Petitioner has presented a petition to wind up the Respondent company for failure to pay a sum of RM1,256,852.32 under a loan agreement, and for RM3,341,732,08 pursuant to a Bridging Loan, secured under a Judgment of the Court in suit D2-22-1634-2000 on 18.4.2008.

 

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oppose the Petition, the Respondent says bad in law as it makes reference to a

 

Judgment dated 18.4.2008, when in fact the Judgment is actually dated 18.4.2010. Further, the said Judgment did not specify whether the Respondent is liable jointly or severally with the 2nd and 3rd Defendants in suit D2-22-1634-2000. The Petitioner had also commenced bankruptcy proceedings against the 2nd and 3rd Defendants in suit D2-22-1634-2000.

 

[3] On the date of hearing of the Petition, Counsel for the Petitioner raised two preliminary objections, which are:

 

(i) that the Respondent did not file a Notice under r. 28 of the Companies (Winding Up) Rules 1972 (WUR) which requires that a Notice of Intention to Appear on Petition shall be filed and served not later 24 hours before the hearing date in Form 8. The Petitioner says that they did not receive any notice; and

 

(ii) that under r. 30 WUR, an affidavit in opposition must be filed and served 7 days before the time appointed for the hearing of the Petition. The Petitioner submits that the affidavit filed by the Respondent was only served on the Petitioner on 5.2.2013, 2 days before the hearing date.

 

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Objection – non compliance with r 28(1)

 

[4] The Petitioner has raised a preliminary objection of the failure by the Respondent to file a Notice of Intention to Appear to oppose the petition under r. 28(1) WUR. The Petitioner submits that the filing of such notice in Form 8 is mandatory, and that because of the Respondent’s failure to comply with the mandatory provisions, the Petitioner prays that the Respondent’s opposition to the petition be dismissed.

 

[5] Rule 28(1) WUR reads:-

 

“Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his solicitor notice of his intention. The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00 o’clock noon of the day previous to the day appointed for the hearing of the petition. (2) The notice may be in form 8 with such variation as circumstances may require. (3) a person who has failed to comply with this rule shall not, without special leave of the Court, be allowed to appear on the hearing of the petition.”

 

[6] On the interpretation of r. 28(1) WUR, there seems to be two lines of High Court authorities on this. The Petitioner relied on the

 

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amura v. Aero Works (Melaka) Sdn Bhd

 

, which applied the principles in C.H

 

Construction And Trading v. Langkah Cergas Sdn Bhd [1994] 1 LNS 20, which suggest that a Notice of Intention to Appear must be filed by a Respondent company who has been petitioned to appear to defend the winding up proceedings.

 

[7] The Respondent however, relied on the cases of Sun Microsystems (M) Sdn Bhd v. KS Eminent Systems Sdn Bhd [2000] 4 MLJ 565 and Perbadanan Pengurusan Bella Vista v. CA Management Services Sdn Bhd [2009] 3 CLJ 161 for the

 

proposition that rule 28(1) WUR does not apply to a respondent in a Petition.

 

[8] Both cases of Sun Microsystems (M) Sdn Bhd and Perbadanan Pengurusan Bella Vista were decided after the cases of C.H Construction And Trading and Mitsuo Nagamura. Justice Hamid Mohamed in his judgment in Sun Microsystems (M) Sdn Bhd had considered the earlier two cases and said this at page 567 para D onwards:-

 

“I was shown a judgment of Abu Samah JC (as he was then) in the case Mitsuo Nagamura v. Aero Works (Melaka) Sdn Bhd [1996] 4 MLJ 209. The learned judicial commissioner held that a Respondent in a winding up petition was not exempted from serving the notice of intention to appear as required by r. 28 of the Companies Winding Up Rules 1972. In other words, a Respondent who fails to serve the notice on the petitioner is not

 

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r to oppose the petition. I adjourned my :ed both learned counsel to do further

 

research on the issue, I now give my decision.

 

I think I should start with the Companies Act 1965 under which the Companies (Winding Up) Rules 1972 are

 

made. Section 221(2), inter alia, provides: “The Court may on the petition coming on for hearing or at any time on the application of the petitioner, the company, or any person who has given notice that he intends appear on the hearing of the petition ….”

 

That subsection goes on to talk about the directions that the Court may give. True that that subsection talks about what directions the Court may give and is therefore not directly relevant to the present discussion. But, it should be noted that the clause ‘who has given notice that he intends to appear on the hearing of the petition’, refer only to ‘any person’ and not the Petitioner or the company (Respondent). True that it cannot apply to the Petitioner. But, it is also clear that the clause does not apply to the company (the Respondent). Otherwise it would not have been drafted that way.”

 

[9] At page 568, His Lordship looked at the words in Rule 28 and Form 8 and said: “It goes without saying that Rules made under an Act should be read subject to the Act. Under s. 221(1) of the Act, it is clear that the clause ‘any person who has given notice that he intends to appear on the hearing of the petition’ does not

 

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or the company (Respondent). That same r. 28. Surely, it has to be read in the light of

 

the provision of the Act.

 

Secondly, Form 8 clearly mentions ‘creditors’ or ‘contributory’. They, up to that stage are not parties to the proceedings and are the most likely people who would like to appear on the hearing of the petition. Surely the Respondent, in most cases, would appear. But, the Respondent is already a party. In this case, the Respondent has already filed an affidavit opposing the petition. The petitioner already knows that the Respondent wants to appear on the hearing of the petition. Otherwise the Respondent would not have filed the affidavit in opposition of the petition. So, in the case of a Respondent, there is no need to give notice anymore.

 

The provision in r. 28(2) that the notice may be varied as circumstances may require in not valid argument for saying that the form envisages a variation to include the Respondent. If the Respondent is required to give the notice, the Respondent, being the original party besides the petitioner, should be the first to be mentioned.”

 

[10] The above passage was adopted by Justice Ramly Ali in Perbadanan Pengurusan Bella Vista as the correct position of the law on rule 28(1). At page 116 the learned Judge said this:

 

“Firstly, r. 28(1) does not refer to the Respondent. If the intention of the rule is to include the Respondent of a

 

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i have made it very clear that the If would have to file the Notice of

 

Intention to Appear. Rule 28 (1), refers to “every person who intends to appear.” It is clear that the Respondent by the service of the Petition is a party to the Petition and he needs not give notice of his intention to appear. The Respondent is already a party to the winding up petition. It appears as the Respondent. The Respondent notice is made when they file the Affidavit in Opposition 7 days before the petition is to be heard.

 

The intention of Rule 28 (1) can be clearly seen in the Form 8 as referred to by Rule 28(2). Form 8 reads:-

 

“Take notice that A.B., of (a) creditor for $… of (or contributory holding (b) …. shares in) the above company intend to appear on the hearing of the petition advertised to be heard on the … day of…. 2000, and to support (or oppose) such petition.”

 

From the said Form 8, it is clear that Rule 28 (1) only applies to “any other person” apart from the Respondent who intends to appear at the hearing to support or oppose the petition. It never had the intention of instructing the Respondent to file the Notice of Intention to Appear. The above proposition is further fortified by reading the opening wordings of section 221(2) of the Companies Act 1965, which reads: “The Court may on the petition coming on for hearing or at any time on the application of

 

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i company or any person who has given tends to appear on the hearing of the

 

petition

 

This rule is clear that a party who is not a party to the proceedings need to give notice of their intended appearance. There is no requirement for the Petitioner or the Respondent who are already parties to the petition to file such a notice”

 

[11] Having considered all the cases referred to by the parties, I am of the considered opinion that the interpretations by Justice Abdul Hamid Mohamad in Sun Microsystems (M) Sdn Bhd and by Justice Ramly Ali in Perbadanan Pengurusan Bella Vista are preferable to that of the earlier cases. To me, the clear words in Rule 28 (1) referred to other parties, not the Respondent in a petition, as the Respondent is already named in the Petition. If the Respondent is already named as a party in the Petition, he can definitely appear on the hearing of the petition and therefore does not need leave to appear as envisaged by rule 28(3) WUR.

 

[12] Based on the above considerations, the Court finds that the Petitioner’s preliminary objection that the Respondent did not file a Notice under r. 28 of the Companies (Winding Up) Rules 1972 (WUR) which requires that a Notice of intention shall be filed and served not later 24 hours before the hearing date in Form 8 is without merit and therefore be dismissed.

 

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r Objection – non compliance with r. 30

 

[13] It is the Petitioner’s submission that the affidavit filed by the Respondent was only served on them on 5.2.2013, 2 days before the hearing date. Under r. 30 WUR, the Petitioner submits that an affidavit in opposition must be filed and served 7 days before the time appointed for the hearing of the Petition. Rule 30(1) of the Companies (Winding-up) Rules 1972 which reads as follows:-

 

“30(1) Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition.”

 

[14] The Petitioner relies on the decision of the Court of Appeal in Crocuses and Daffodils (M) Sdn. Bhd v. Development & Commercial Bank [1997] 3 CLJ 485, Siti Norma JCA (as she then was) said:-

 

“By their words and expression, r. 30(1) is mandatory in nature and as such the learned Judge was correct when he refused to admit all four affidavits in opposition for non-compliance of that particular rule. The fact that the four affidavits were only relied upon on 24 November 1995 does not alter the position as such affidavits were intended for use in the earlier hearings which never took

 

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e earlier hearings were adjourned for other.”

 

[15] The decision of Crocuses & Daffodils has been reaffirmed by the Court of Appeal in Gulf Business Construction Sdn Bhd v Israq Holding Sdn Bhd [2010] 5 MLJ 34 where it is held that the clear and unambiguous words in r. 30(1) of the WUR had to be given effect and that the respondents impugned affidavit in opposition could not be relied upon in the petition. The requirement of rule 30(1) was held to be mandatory. At page 43 of the judgment, the Court held that:-

 

“[15] The impugned affidavit should be filed and a copy thereof served on the petitioner or the petitioner’s solicitor at least seven days before the hearing date of the petition. This was not done. We were told that the objection was upheld by the High Court judge and rightly so. The mandatory nature of r 30(1) of the Companies (Winding-Up) Rules 1972 was highlighted by Siti Norma Yaakob JCA (later Chief Judge Malaya) in Crocuses & Daffodils (M) Sdn Bhd v Development & Commercial Bank Bhd [1997] 2 MLJ 756 (CA).” (emphasis added)

 

[16] On this issue, this Court is bound by the two decisions of the Court of Appeal that an affidavit in opposition must be filed and served 7 days before the time appointed for the hearing of the Petition. Since the Respondent’s affidavit in opposition was only

 

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ner on 5.2.2013, 2 days before the hearing led outside the time specified in r. 30(1). As

 

such, I will allow the preliminary objection of the Petitioner on non

 

compliance with r. 30(1) by the Respondent and this court will not rely on the affidavit in opposition filed by the Respondent for the hearing of the Petition.

 

(AZIZAH HAJI NAWAWI) JUDICIAL COMMISSIONER HIGH COURT (Commercial Division) KUALA LUMPUR

 

Date: 4 March 2013

 

Petitioner

 

Teoh Chen Yee Messrs A I Nathan

 

Respondent : Gregory Dicom (Anita Thaiyub Khan with him)

 

Messrs A G Dicom & Co

 

OR : Nor Azlina

 

Jabatan Insolvensi Malaysia

 

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