Daryl Kong for the Applicant [Messrs Edwin Lim & Suren] LAIN-LAIN 1. ) Louis Chong for the Petitioner [Messrs Zaid Ibrahim & Co.] 2. ) Priscilla Deng for the Official Receiver [Jabatan Insolvensi Malaysia]

Daryl Kong for the Applicant [Messrs Edwin Lim & Suren] LAIN-LAIN 1. ) Louis Chong for the Petitioner [Messrs Zaid Ibrahim & Co.] 2. ) Priscilla Deng for the Official Receiver [Jabatan Insolvensi Malaysia]

The court found that the petitioner and its solicitors failed to inform the company's solicitors and the Court of Appeal of the pending winding up petition and order while an appeal was active, which amounted to concealment and lack of good faith constituting an abuse of process; that abuse constituted special circumstances under section 492 justifying a stay of the winding up order until disposal of the appeal, together with specified restrictions and costs.

Citation
POST (WINDING-UP) NO. WA-28PW-111-04/2021 (Mahkamah Tinggi)
Parties
Applicant / Contributory: Yeoh William; Company / Subject of Winding Up: Yang Zhong Capital Sdn Bhd; Petitioner: Fuji Xerox Asia Pacific Pte Ltd; Liquidator / Official Receiver: Official Receiver
Court
WINDING-UP
Jurisdiction
Malaysia
Judgment Date
25 June 2021
Case Number
POST (WINDING-UP) NO. WA-28PW-111-04/2021 (Mahkamah Tinggi)
Procedural Posture
Winding Up / Stay Application Under Companies Act 2016 / Judgment on Stay Application Pending Appeal
Outcome
Application granted in part; stay of winding up order until disposal of the Company's appeal; costs awarded to applicant.
Legal Topics
Winding Up, Stay of Winding Up Order, Abuse of Process, Service of Process, Special Circumstances Test
Source Language
Malay/English
Company Law Insolvency Law Civil Procedure Appeals Winding Up Stay of Winding Up Order Abuse of Process Service of Process +1 more

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Parties

Yeoh William

Applicant / Contributory

Yang Zhong Capital Sdn Bhd

Company / Subject of Winding Up

Fuji Xerox Asia Pacific Pte Ltd

Petitioner

Official Receiver

Liquidator / Official Receiver

Procedural Posture

Winding Up / Stay Application Under Companies Act 2016 / Judgment on Stay Application Pending Appeal

Legal Issues

  1. 1 Whether to grant a stay of the winding up order under section 492 of the Companies Act 2016
  2. 2 Whether the petitioner concealed material facts and abused court process by not informing the company's solicitors and the Court of Appeal of the winding up petition/order
  3. 3 Whether service on the company secretary rather than the company's solicitors affected validity or fairness of the petition

Ratio Decidendi

The court found that the petitioner and its solicitors failed to inform the company's solicitors and the Court of Appeal of the pending winding up petition and order while an appeal was active, which amounted to concealment and lack of good faith constituting an abuse of process; that abuse constituted special circumstances under section 492 justifying a stay of the winding up order until disposal of the appeal, together with specified restrictions and costs.

Court Disposition

Application granted in part; stay of winding up order until disposal of the Company's appeal; costs awarded to applicant.

Orders

  • Stay of the Winding Up Order until disposal of Appeal No. W-04(IM)(NCVC)-238-08/2020
  • No dealings in the assets of the Company in any way whatsoever without the consent of this Court