PEMPETISYEN Exxobrite Sdn Bhd Value Plus Industries Sdn Bhd

PEMPETISYEN Exxobrite Sdn Bhd Value Plus Industries Sdn Bhd

The court held that a statutory notice of demand issued during a subsisting judicial management order constituted a 'legal process' within section 411(4)(c) and was therefore issued in breach of the moratorium and declared invalid; notwithstanding that, the petition based on section 466(1)(c) was maintainable on the documentary evidence (SOP, admitted debt and multiple creditors) and factual findings of commercial insolvency and breakdown of management, so the winding up order was granted and the petition was not struck out.

Citation
WA-28NCC-127-02/2022 (Mahkamah Tinggi)
Parties
Petitioner: Exxobrite Sdn Bhd; Respondent: Value Plus Industries Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
29 July 2022
Case Number
WA-28NCC-127-02/2022 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition / Grounds of Judgment / Final Determination on Petition and Interlocutory Summons
Outcome
SND declared invalid for breach of section 411(4)(c); winding up order against the Respondent granted; petition not dismissed
Legal Topics
Winding Up, Judicial Management, Statutory Demand, Moratorium, Commercial Insolvency, Abuse of Process, Transfer of Proceedings
Source Language
Malay/English
Company Law Insolvency Law Commercial Litigation Winding Up Judicial Management Statutory Demand Moratorium Commercial Insolvency +2 more

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Parties

Exxobrite Sdn Bhd

Petitioner

Value Plus Industries Sdn Bhd

Respondent

Procedural Posture

Companies (winding Up) Petition / Grounds of Judgment / Final Determination on Petition and Interlocutory Summons

Legal Issues

  1. 1 Whether a statutory notice of demand (SND) issued during a judicial management order (JMO) constitutes a commencement of 'other proceedings' or 'legal process' under section 411(4)(c) of the Companies Act 2016
  2. 2 Whether the winding up petition should be struck out as an abuse of process or because the debt is bona fide disputed
  3. 3 Whether the petitioning creditor may rely on section 466(1)(c) (court satisfied company unable to pay debts) without a statutory demand under section 466(1)(a)

Ratio Decidendi

The court held that a statutory notice of demand issued during a subsisting judicial management order constituted a 'legal process' within section 411(4)(c) and was therefore issued in breach of the moratorium and declared invalid; notwithstanding that, the petition based on section 466(1)(c) was maintainable on the documentary evidence (SOP, admitted debt and multiple creditors) and factual findings of commercial insolvency and breakdown of management, so the winding up order was granted and the petition was not struck out.

Court Disposition

SND declared invalid for breach of section 411(4)(c); winding up order against the Respondent granted; petition not dismissed

Orders

  • Statutory Notice of Demand dated 25.1.2022 held invalid for breaching section 411(4)(c) of the Companies Act 2016
  • Petition to wind up Value Plus Industries Sdn Bhd allowed on just and equitable grounds and company ordered to be wound up