PEMPETISYEN David Thomas Matthews, Tina Ann Francis and Jason Tan Jen Hua for the Petitioner in the Petition and the 1st Defendant in the Originating Summons and mentioning on behalf of Amanah Raya Berhad as personal presentative representi

PEMPETISYEN David Thomas Matthews, Tina Ann Francis and Jason Tan Jen Hua for the Petitioner in the Petition and the 1st Defendant in the Originating Summons and mentioning on behalf of Amanah Raya Berhad as personal presentative representi

The OS seeking a Fortuna injunction was dismissed because no prima facie irreparable harm or abuse sufficient to restrain the already-published petition was established and alternative proceedings did not displace the proper remedy; the petition to wind up Chiptar Holdings Sdn Bhd was granted on just and equitable grounds due to an established, irretrievable breakdown of mutual trust and confidence among principal shareholders/directors, rendering the company incapable of being managed as a going concern; a liquidator (Ralph Ravin Ratnaswany) was appointed and specified costs orders were made.

Citation
COMPANIES (WINDING-UP) PETITION NO. WA-28NCC-445-07/2021 (Mahkamah Tinggi)
Parties
Petitioner: Ter Chin Heng; 1st Respondent: Chiptar Holdings Sdn Bhd; 2nd Respondent / Plaintiff (originating Summons): Ter Thian Tin; 3rd Respondent: Ter Wei Hong; 4th Respondent: Li Yuhua; 5th Respondent: Personal Representative of the Estate of Teh Yu Chai @ Ter Swee Leong
Court
WINDING-UP
Jurisdiction
Malaysia
Judgment Date
21 March 2022
Case Number
COMPANIES (WINDING-UP) PETITION NO. WA-28NCC-445-07/2021 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition and Originating Summons (commercial Division) / Hearing Concluded; Grounds of Judgment Delivered
Outcome
Originating Summons dismissed; Winding up petition granted and Chiptar Holdings Sdn Bhd ordered to be wound up; liquidator appointed; ancillary enclosure applications dismissed as academic; costs awarded as specified.
Legal Topics
Winding Up (just and Equitable), Fortuna Injunction, Abuse of Process, Director and Shareholder Disputes, Appointment of Liquidator, Costs Orders
Source Language
Malay/English
Company Law Insolvency Civil Procedure Equity Winding Up (just and Equitable) Fortuna Injunction Abuse of Process Director and Shareholder Disputes +2 more

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Parties

Ter Chin Heng

Petitioner

Chiptar Holdings Sdn Bhd

1st Respondent

Ter Thian Tin

2nd Respondent / Plaintiff (originating Summons)

Ter Wei Hong

3rd Respondent

Li Yuhua

4th Respondent

Personal Representative of the Estate of Teh Yu Chai @ Ter Swee Leong

5th Respondent

Procedural Posture

Companies (winding Up) Petition and Originating Summons (commercial Division) / Hearing Concluded; Grounds of Judgment Delivered

Legal Issues

  1. 1 Whether a Fortuna injunction should restrain the presentation/publication of the winding up petition
  2. 2 Whether alternative remedies (rights issue suit and fiduciary suit) preclude winding up
  3. 3 Whether there is a just and equitable basis to wind up Chiptar Holdings Sdn Bhd due to breakdown in mutual trust and confidence

Ratio Decidendi

The OS seeking a Fortuna injunction was dismissed because no prima facie irreparable harm or abuse sufficient to restrain the already-published petition was established and alternative proceedings did not displace the proper remedy; the petition to wind up Chiptar Holdings Sdn Bhd was granted on just and equitable grounds due to an established, irretrievable breakdown of mutual trust and confidence among principal shareholders/directors, rendering the company incapable of being managed as a going concern; a liquidator (Ralph Ravin Ratnaswany) was appointed and specified costs orders were made.

Court Disposition

Originating Summons dismissed; Winding up petition granted and Chiptar Holdings Sdn Bhd ordered to be wound up; liquidator appointed; ancillary enclosure applications dismissed as academic; costs awarded as specified.

Orders

  • Originating Summons (OS) dismissed with costs of RM15,000 to be paid by the 2nd Respondent to the Petitioner
  • Winding up order granted in terms of paragraph 1 of Enclosure 1 to wind up Chiptar Holdings Sdn Bhd pursuant to s.465(1)(h) Companies Act 2016