PEMPETISYEN XXXX 1. ) TAN KIM CHOO HOLDINGS SDN. BHD. 2. ) XXXX

PEMPETISYEN XXXX 1. ) TAN KIM CHOO HOLDINGS SDN. BHD. 2. ) XXXX

The court exercised its discretion to strike out the winding-up petition with liberty to file afresh and no order as to costs because (a) the petition was not at an advanced stage ready for hearing (it had not been advertised/gazetted), (b) material change of circumstances (death/incapacity of TKC, loan default, non-filing of statutory accounts exposing officers to offences) made the petition no longer appropriate in its present form, (c) contributories including the Administrator Pendente Lite supported withdrawal, (d) the interim orders relied on by the 2nd Respondent either had expired or did not justify refusing withdrawal, and (e) there was no convincing evidence the withdrawal was...

Citation
WA-28NCC-173-03/2016 (Mahkamah Tinggi)
Parties
Petitioner: Tan Poh Lee; 1st Respondent: Tan Kim Choo Holdings Sdn Bhd; 2nd Respondent: Tan Boon Thien; Contributory/administrator Pendente Lite: Administrator Pendente Lite for the estate of Tan Kim Choo; Contributory: Tan Poh Yee; Contributory: Tan Poh Hui
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 November 2022
Case Number
WA-28NCC-173-03/2016 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition / Application to Withdraw/strike Out Petition; Decision Granting Strike Out With Liberty to File Afresh
Outcome
Winding-up petition struck out
Legal Topics
Winding Up Petition, Withdrawal/discontinuance of Proceedings, Stay of Proceedings, Directors' Statutory Duties and Filings, Locus Standi
Source Language
Malay/English
Company Law Insolvency Law Civil Procedure Winding Up Petition Withdrawal/discontinuance of Proceedings Stay of Proceedings Directors' Statutory Duties and Filings Locus Standi

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Parties

Tan Poh Lee

Petitioner

Tan Kim Choo Holdings Sdn Bhd

1st Respondent

Tan Boon Thien

2nd Respondent

Administrator Pendente Lite for the estate of Tan Kim Choo

Contributory/administrator Pendente Lite

Tan Poh Yee

Contributory

Tan Poh Hui

Contributory

Procedural Posture

Companies (winding Up) Petition / Application to Withdraw/strike Out Petition; Decision Granting Strike Out With Liberty to File Afresh

Legal Issues

  1. 1 Whether the Petitioner may withdraw the winding-up petition at this stage
  2. 2 Whether withdrawal would cause injustice or confer a collateral advantage on the 2nd Respondent
  3. 3 Whether interim preservation orders or the stay preclude withdrawal

Ratio Decidendi

The court exercised its discretion to strike out the winding-up petition with liberty to file afresh and no order as to costs because (a) the petition was not at an advanced stage ready for hearing (it had not been advertised/gazetted), (b) material change of circumstances (death/incapacity of TKC, loan default, non-filing of statutory accounts exposing officers to offences) made the petition no longer appropriate in its present form, (c) contributories including the Administrator Pendente Lite supported withdrawal, (d) the interim orders relied on by the 2nd Respondent either had expired or did not justify refusing withdrawal, and (e) there was no convincing evidence the withdrawal was...

Court Disposition

Winding-up petition struck out

Orders

  • Winding-up Petition struck out
  • Liberty to the Petitioner to file afresh