Yap Yeow Huan & Ezra Voon Bu Khiong for the Respondent [Messrs Rahmat Lim & Partners] LAIN-LAIN Shamsul Bahrin & Thomas Shaun for the Petitioner [Messrs Mohanadas Partnership]

Yap Yeow Huan & Ezra Voon Bu Khiong for the Respondent [Messrs Rahmat Lim & Partners] LAIN-LAIN Shamsul Bahrin & Thomas Shaun for the Petitioner [Messrs Mohanadas Partnership]

The court held that on the plain wording the corporate guarantee did cover amounts awarded by adjudication because it referenced the Letter of Undertaking which expressly included liabilities arising from awards or decisions of arbitration or adjudication; however because arbitration and related proceedings were ongoing and the Respondent demonstrated a prima facie bona fide dispute as to the debt, the petition was dismissed in the exercise of the court’s discretion under section 465 of the Companies Act 2016 and costs were awarded to the Respondent.

Citation
COMPANIES (WINDING-UP) NO: WA-28NCC-839-08/2019 (Mahkamah Tinggi)
Parties
Petitioner: Malaysia Marine And Heavy Engineering Sdn Bhd; Respondent: Sindora Berhad
Court
WINDING-UP
Jurisdiction
Malaysia
Judgment Date
28 September 2020
Case Number
COMPANIES (WINDING-UP) NO: WA-28NCC-839-08/2019 (Mahkamah Tinggi)
Procedural Posture
Winding Up Petition Under Companies Act 2016 / Judgment — Petition Dismissed
Outcome
Petition dismissed
Legal Topics
Statutory Demand, Corporate Guarantee, Adjudication Decision, Bona Fide Dispute, Winding Up, Section 28 CIPAA, Enforcement Vs Execution
Source Language
Malay/English
Company Law Insolvency Construction Law Contract Law Arbitration Statutory Adjudication (cipaa) Statutory Demand Corporate Guarantee +5 more

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Parties

Malaysia Marine And Heavy Engineering Sdn Bhd

Petitioner

Sindora Berhad

Respondent

Procedural Posture

Winding Up Petition Under Companies Act 2016 / Judgment — Petition Dismissed

Legal Issues

  1. 1 Whether the corporate guarantee covers amounts awarded in a CIPAA adjudication
  2. 2 Whether the alleged debt is bona fide disputed such that winding up is inappropriate
  3. 3 Whether ongoing arbitration and related proceedings demonstrate a genuine dispute

Ratio Decidendi

The court held that on the plain wording the corporate guarantee did cover amounts awarded by adjudication because it referenced the Letter of Undertaking which expressly included liabilities arising from awards or decisions of arbitration or adjudication; however because arbitration and related proceedings were ongoing and the Respondent demonstrated a prima facie bona fide dispute as to the debt, the petition was dismissed in the exercise of the court’s discretion under section 465 of the Companies Act 2016 and costs were awarded to the Respondent.

Court Disposition

Petition dismissed

Orders

  • Winding up petition dismissed
  • Costs awarded to Respondent RM20000