PEMPETISYEN Lim Shuk Kim for the Petitioner [MessrsTan Chuan Yong & S.M Chan] Andrew Fernandez for the Respondent [Messrs Chooi & Company + Cheang & Ariff]

PEMPETISYEN Lim Shuk Kim for the Petitioner [MessrsTan Chuan Yong & S.M Chan] Andrew Fernandez for the Respondent [Messrs Chooi & Company + Cheang & Ariff]

The petition was dismissed because the petitioner failed to make a prima facie case of inability to pay under s465(1)(e): available financial evidence (assets, valuations, OR report, independent solvency review) prima facie showed sufficient assets to meet liabilities; the debt was genuinely disputed by ongoing SIAC arbitration such that the adjudication decision may be overridden; the just and equitable ground was not pleaded with particulars; the petitioner did not stand outside the winding up notwithstanding a prior proof of debt. Consequently the petition was obviously unsustainable and struck out with costs.

Citation
WA-28NCC-163-02/2022 (Mahkamah Tinggi)
Parties
Petitioner: SINOHYDRO CORPORATION (M) SDN BHD; Respondent: KAJ DEVELOPMENT SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 June 2022
Case Number
WA-28NCC-163-02/2022 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition WA 28 NCC 163 02/2022 / Interlocutory Applications (enclosures 8 & 9) to Strike Out/stay and Injunct Advertisement; Judgment on Summons
Outcome
Petition dismissed as obviously unsustainable; Enclosure 8 dismissed as academic
Legal Topics
Winding Up, Insolvency Test (overall Assets Vs Liabilities), Striking Out Under Order 18 R19, Disputed Debt, Enforcement of CIPAA Adjudication Decision, Secured Creditor Election/proof of Debt
Source Language
Malay/English
Company Law Insolvency Civil Procedure Arbitration Construction Law Winding Up Insolvency Test (overall Assets Vs Liabilities) Striking Out Under Order 18 R19 +3 more

Case Brief

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Parties

SINOHYDRO CORPORATION (M) SDN BHD

Petitioner

KAJ DEVELOPMENT SDN BHD

Respondent

Procedural Posture

Companies (winding Up) Petition WA 28 NCC 163 02/2022 / Interlocutory Applications (enclosures 8 & 9) to Strike Out/stay and Injunct Advertisement; Judgment on Summons

Legal Issues

  1. 1 Whether the Petitioner has made a prima facie case that the Respondent is unable to pay its debts under s465(1)(e) read with s466(1) Companies Act 2016
  2. 2 Whether the petition discloses just and equitable grounds under s465(1)(h)
  3. 3 Whether the debt claimed is genuinely disputed by reason of ongoing SIAC arbitration

Ratio Decidendi

The petition was dismissed because the petitioner failed to make a prima facie case of inability to pay under s465(1)(e): available financial evidence (assets, valuations, OR report, independent solvency review) prima facie showed sufficient assets to meet liabilities; the debt was genuinely disputed by ongoing SIAC arbitration such that the adjudication decision may be overridden; the just and equitable ground was not pleaded with particulars; the petitioner did not stand outside the winding up notwithstanding a prior proof of debt. Consequently the petition was obviously unsustainable and struck out with costs.

Court Disposition

Petition dismissed as obviously unsustainable; Enclosure 8 dismissed as academic

Orders

  • Winding up Petition dismissed with costs of RM8,000
  • Enclosure 8 dismissed with no order as to costs