PEMPETISYEN Nad Segaram and Ow Jeong Jun for the Petitioner [Messrs Shearn Delamore & Co.] ustin Voon and Lim Shu Ting for the Respondent [Messrs Justin Voon Chooi & Wing (Kuala Lumpur]

PEMPETISYEN Nad Segaram and Ow Jeong Jun for the Petitioner [Messrs Shearn Delamore & Co.] ustin Voon and Lim Shu Ting for the Respondent [Messrs Justin Voon Chooi & Wing (Kuala Lumpur]

The court held there was no bona fide substantial dispute: the company's conduct and part payments amounted to acceptance/admission of the Settlement Agreement; the affidavit defect was cured by Rule 197; non-stamping did not go to the document's validity; the statutory demand remained unsatisfied within 21 days;...

Source-derived case information.

Citation
WA-28NCC-585-08/2021 (Mahkamah Tinggi)
Parties
Petitioner: XYLEM WATER SOLUTIONS (M) SDN BHD; Respondent: ELMIBINA SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
20 April 2022
Case Number
WA-28NCC-585-08/2021 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition Under Companies Act 2016 / Final Judgment on Petition and Strike Out Application (hearing Concluded)
Outcome
Winding up petition allowed; strike-out application (Enclosure 7) dismissed
Legal Topics
Statutory Demand, Winding Up, Settlement Agreement, Stamping of Documents, Striking Out Under Order 18 Rule 19, Without Prejudice Communications, Approbate and Reprobate/estoppel by Election, CIPAA Payment Claim, Arbitration
Company Law Insolvency Contract Law Civil Procedure Evidence Construction Law Statutory Demand Winding Up +7 more

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Summary, issues, holding and outcome

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Parties

XYLEM WATER SOLUTIONS (M) SDN BHD

Petitioner

ELMIBINA SDN BHD

Respondent

Procedural Posture

Companies (winding Up) Petition Under Companies Act 2016 / Final Judgment on Petition and Strike Out Application (hearing Concluded)

Legal Issues

  1. 1 Whether the company is unable to pay its debts after service of a statutory demand
  2. 2 Validity and enforceability of the Settlement Agreement (unsigned and unstamped issues)
  3. 3 Whether affidavit verifying petition is valid despite formal defect

Ratio Decidendi

The court held there was no bona fide substantial dispute: the company's conduct and part payments amounted to acceptance/admission of the Settlement Agreement; the affidavit defect was cured by Rule 197; non-stamping did not go to the document's validity; the statutory demand remained unsatisfied within 21 days; consequently the company was unable to pay its debts and the winding up petition succeeded while the strike-out application failed.

Court Disposition

Winding up petition allowed; strike-out application (Enclosure 7) dismissed

Orders

  • Dismissed Enclosure 7 (strike-out application) with costs
  • Granted order in terms of the Petition: wind up Elmibina Sdn Bhd (order in terms of Enclosure 1)