1. DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO. P-02-2820-10
ANTARA
1. FORWARD PERCEPTION SDN BHD
[NO. SYARIKAT: 314720-H)
2. LEE KIM SAI …PERAYU-PERAYU
DAN
TAN SOON KEAT …RESPONDEN
DALAM PERKARA MENGENAI MAHKAMAH TINGGI MALAYA DI PULAU
PINANG SYARIKAT (PENGGULUNGAN) NO. 28-81-2009
Dalam Perkara Mengenai Seksyen 217(2)(b) dan/atau Seksyen
218(1)(f) dan (i) Akta Syarikat 1965
Dan
Dalam Perkara Mengenai Forward Perception Sdn Bhd (No.
Syarikat: 314720-H)
Dan
Dalam Perkara Mengenai Kaedah-kaedah Syarikat
(Penggulungan) 1972
Antara
Tan Soon Keat …Pempetisyen
Dan
1. Forward Perception Sdn Bhd
(No. Syarikat: 314720-H)
2. Lee Kim Sai …Responden-responden
THE RESPONDENT’S WRITTEN SUBMISSION

2. [1] INTRODUCTION
This Submission is filed by the Respondent/Petitioner
in respect of the Appeal filed by the Appellants’
against the decision delivered by the Honourable Judge
of High Court at Penang on 10.5.2010 in favour of the
Winding Up Petition filed by the Respondent.
It is of utmost importance for This Honourable Court
to take note of the fact that this Appeal is a non-
starter on the basis that the Company is wound up and
that the 2nd
Appellant does not have authority to file
this appeal on behalf of the Company, i.e. 1st
Appellant.
[2] THE APPLICATION
i. The Respondent/Petitioner’s Humble Petition before
High Court at Penang was an application by the
abovenamed Respondent/Petitioner for an Order For
Winding Up to be made against the 1st
Appellant,
Forward Perception Sdn Bhd which was filed before
the Penang High Court on 17.6.2009 with the
Affidavit Verifying Petition which was affirmed by
Tan Soon Keat [the Respondent/Petitioner] on
19.6.2009.
ii. Further, the following affidavits have been filed
in compliance with the provisions of the Companies
Winding Up Rules 1972:
a. “Afidavit Penyampaian Mohamad Kassim
Kaesevan B. Abdullah” affirmed on 30.7.2009;
b. “Afidavit Penyampaian Ahmad Razali Bin Mat
Sab” affirmed on 30.7.2009;
c. “Afidavit Penyampaian Jonathan Gabriel
Augustine” affirmed on 18.8.2009; and
d. “Afidavit Penyampaian Mohamad Kassim
Kaesevan B. Abdullah” affirmed on 18.8.2009.
iii. The Respondent/Petitioner has complied with Rule 32
(1) of the Companies Winding Up Rules 1972 wherein
the Respondent/Petitioner has made an application
for the Registrar’s Certificate to be granted by
way of an Ex-Parte Summons-In-Chambers dated
2

3. 18.8.2009 supported by an Affidavit In Support
affirmed by Karin Lim Ai Ching on 18.8.2009. The
said Registrar’s Certificate was granted by This
Honourable Court on 21.8.2009.
iv. The Solicitors for the 2nd
Appellant has filed an
Affidavit in Opposition of the said Petition
affirmed by Lee Kim Sai on 21.8.2009.
v. The Respondent/Petitioner has objected to the
admissibility of the said Affidavit in Opposition
on the ground that the said Affidavit In Opposition
was filed out of time since the Affidavit In
Opposition of the Respondent/Petitioner’s Petition
has to be filed at least 7 days before the hearing
of the said Petition.
Refer to:-
[1] Rule 30 (1) Companies Winding Up Rules 1972
[marked as “Tag-A” Respondent/Petitioner’s
Bundle of Authorities [RBA]] states as
follows:-
“ Affidavits in opposition to a petition
that a company may be wound up shall be
filed and a copy thereof served on the
Petitioner or his solicitor at least seven
days before the time appointed for the
hearing of the petition”.
[2] The High Court case of Dataprep (Malaysia)
Sdn Bhd v. Utas Lambang Sdn Bhd [2009] 7 CLJ
163 [marked as “Tag-B” RBA] held that :-
“ (1) Rule 30(1) of the Companies
(Winding-Up) Rules 1972 is
mandatory as it incorporates the
word ‘shall’. The case of Ng
Thoong Chen v. Kedah Marble Sdn
Bhd was only a high court decision
while the case of Coruses and
Daffodils (M) Sdn Bhd v.
Development and Commercial Bank
Bhd was a Court of appeal
decision. This court was bound by
the Court of Appeal decision due
3

4. to the practice of ‘binding
precedent.’
(para 6)
(2) The petition should be allowed
solely on the ground of no
affidavit in opposition was filed.
However, even if the affidavit
which was filed was admitted, the
respondent was in a position of
not being able to pay its debts
and therefore must also be wound
up. The respondent’s position was
one of being unable to pay its
debts under s. 218(1)(e) of the
Companies Act 1965. (paras 11 &
12)”.
vi. The Respondent/Petitioner further submits that the
time prescribed by Rule 30(1) of the Companies
Winding Up Rules 1972 (hereinafter referred to as
“the said Rules”) is a mandatory requirement and as
such the Appellant’s Affidavit In Opposition should
not be accepted by This Honourable Court on the
basis that the delay in the filing of the said
Affidavit In Opposition is a clear and blatant
contravention of the mandatory time prescribed by
Rule 30(1) of the said Rules.
vii. In light of the above, the Respondent/Petitioner
also submits that any application for the extension
of time by the Appellants should not be entertained
by This Honourable Court on the grounds that the
law on the filing of any Affidavit In Opposition is
clear and is made mandatory under the said Rules
and the failure of the Appellants to comply with
the same is a blatant disregard of the said Rules
and its importance and such failure was committed
with the intention of delaying the due process of
the Court, albeit the hearing of the Petition.
viii. The delay on the part of the Appellants is a non-
compliance which is not curable by invoking Order
1A RHC 1980 since Rule 30(1) of the said Rules is a
mandatory or fundamental requirement without any
room for recourse.
Refer to :-
4

5. DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL IBNI
SULTAN ISKANDAR AL-HAJ
v.
Datuk Captain Hamzah Mohd Noor & Another Appeal
[2009] 4 CLJ 329
CIVIL PROCEDURE : Rules of court – Non-compliance –
Scope of O. 1A RHC 1980 – Order 1A cannot supersede
fundamental or mandatory requirements of rules of
court – Order 1A cannot be invoked when a party
intentionally disregards compliance with rules of
court – Order 1A cannot be invoked to cure failure
to comply with prerequisites of O. 6r. 7(2A) RHC
1980
The Federal Court in the DULI YANG AMAT MULIA TUNKU
IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ v. Datuk
Captain Hamzah Mohd Noor & Another Appeal [2009] 4
CLJ 329 [marked as “Tag-C” RBA] has held as follows
:-
“ (4) A general provision such as O. 1A RHC must
not supercede a mandatory requirement of the
Rules. Order 1A RHC cannot be invoked when a
party intentionally disregards in complying
with the rules. Thus in this case, O. 1A RHC
did not apply as the respondents had
intentionally disregarded O.6 r. 7(2A) RHC
for their own reasons. (para 46)
(5) In the context of the Rules of the High
Court 1980 the phrase “...technical non-
compliance...” refers to non-compliance with
a rule with a rule which is not fundamental
or mandatory in nature. Order 1A RHC cannot
be invoked to cure the failure to comply
with the prerequisites O. 6 r. 7(2A) RHC.
The answer to question two was in the
negative. (paras 48, 49 & 50).”
ix. Furthermore, the said Petition was presented upon
the 1st
and 2nd
Appellants on 3.7.2009 and 17.7.2009
respectively. That being the case, the
Respondent/Petitioner submits that the Appellants
had ample time to file their Affidavit in
Opposition before the hearing of the Petition
albeit, in compliance with Rule 30(1) of the said
Rules. The Appellants’ failure to do so is a clear
5

6. and blatant disregard of the mandatory requirement
prescribed by the said Rules and the said Petition.
Refer to :-
[1] It was held in Crocuses & Daffodils (M) Sdn
Bhd v. Development & Commercial Bank Bhd
[1997] 3 CLJ 485 [marked as “Tag-D” RBA] as
follows :-
“ [2] The service of all affidavits on the
bank had clearly and blatantly
contravened r.30(1) of the Rules and,
therefore, the trial Judge was right
in refusing to admit them.
Consequently, as the affidavits were
in admissible, there was no evidence
of the company’s cross-claim which
warranted the notice to be heard on
its merits.
[3] Furthermore, the petition was
presented five years ago and the
company’s indebtedness had been
established as long ago as in 1984.
Proceedings in the form of execution
of judgements should never be allowed
to drag on, more so where such
proceedings concern the compulsory
winding-up of a company.”
x. The Respondent/Petitioner further submits that due
to the inadmissibility of the said Affidavit In
Opposition on the basis that there has been an
inordinate delay in filing the said Affidavit in
Opposition, the 2nd
Appellant is thus presumed to
have failed to file any affidavit in reply to the
Respondent/Petitioner’s Petition and hence such
failure is treated as an admission by the
Appellants of the facts as asserted by the
Respondent/Petitioner in his Petition.
Refer to :-
The Court of Appeal in the case of Ng Hee Thoong &
Anor v. Public Bank Bhd [1995] 1 MLJ 283 [marked as
“Tag-E” RBA] has held that:-
“(1) In evaluating affidavit evidence, where one
party makes a positive assertion upon a
6

7. material issue, the failure of his opponent
to contradict it is usually treated as an
admission by him of the fact so asserted.”
xi. Hence, in light of the above, the
Respondent/Petitioner humbly submits that the
Affidavit in Opposition which was filed by the
Solicitors for the 2nd
Appellant is bad and should
not be admissible.
[3] THE PRELIMINARY OBJECTIONS RAISED BY THE
RESPONDENT/PETITIONER’S SOLICITORS
[1] The Delay in the Filing of the Affidavit In Opposition
a. The Delay in the filing of the Affidavit In
Opposition is a clear contravention of the
mandatory requirement of Rule 30 Companies
(Winding-up Rules) 1972. The counsel for the
Respondent/Petitioner further referred to the
following Court of Appeal cases in addition to
the Court of Appeal case of Crocuses & Daffodils
(M) Sdn Bhd v. Development & Commercial Bank Bhd
(which has set the binding precedent) which have
referred and followed the said Court of Appeal
case on the strict compliance of Rule 30
Companies (Winding-up) Rules 1972:-
i. Ayer Molek Rubber Co. Bhd v. Mirra Sdn Bhd [2008]
2 CLJ 459 [marked as “Tag-F” RBA] wherein Abdul
Hamid Embong JCA has held that :
“ (1) The appellant had ample time (over two
months) when the petition was served on it
on 13 January 2006 to file an affidavit in
opposition pursuant to r. 30(1) of the
Companies (Winding-up) rules 1972
(‘Rules’). On 23 March 2006, when the
petition was fixed for hearing, that
affidavit in opposition had not been filed.
The petition was adjourned to 13 April
2006, thus giving the appellant a further
opportunity to file its affidavit in
opposition, which may have been considered
to be in compliance with r. 30(1) of the
Rules. However, even by 13 April 2006, the
appellant failed to indicate its intention
to oppose the petition. Therefore, against
the factual background of this instant
7

8. case, the learned judge’s exercise of her
discretion in not adjourning the matter
when it came up for hearing was correct.
There was no merit in the appellant’s
complaint that it had been deprived of its
rights to be heard since it was the
appellant who was entirely at fault.
Crocuses & Daffodils (M) Sdn Bh v.
Development & Commercial Bank Bhd
(foll);..”
Abdul Hamid Embong JCA further quoted the case of
Crocuses & Daffodils (M) Sdn Bhd v. Development &
Commercial Bank Bhd [1997] 3 CLJ 485 wherein the
Court of Appeal in the case of Crocuses held,
inter alia that:
“ Moreover, r. 30(1) of the 1972 Rules is
mandatory in nature and therefore the judge was
correct when he refused to admit all four
affidavits in opposition for non-compliance of
r. 30. The fact that the four affidavits were
only relied upon on 24 November 1995 did not
alter the position as such affidavits were
intended for use in the earlier hearings which
never took place as all the earlier hearings
were adjourned for some reason or other.”
ii. In Anvest Corporation Sdn Bhd v. Wong Siew Choong
Sdn Bhd [2008] 3 CLJ 317 [marked as “Tag-G” RBA]
Abdul Hamid Embong JCA has once again held that :
“ [10] This court had in the case of Crocuses &
Daffodils (M) Sdn Bhd v. Development &
Commercial Bank Bhd [1997] 3 CLJ 485 held
that r. 30(1) of the 1972 Rules is
mandatory in nature and that there must be
strict compliance with it.
[11] An affidavit in opposition is crucial as
this would form the basis for the winding-
up court to make an appropriate order (see
r. 30(2)).”
iii. In the case of Unispan Formwork Sdn Bhd v. Kim
Choy Tractor Works Sdn Bhd [2004] 4 CLJ 151
[marked as “Tag-H” RBA] Alizatul Khair Osman JC
has followed the Court of Appeal decision of
8

9. Crocuses in Crocuses & Daffodils (M) Sdn Bhd v.
Development and Commercial Bank on the strict
compliance of the mandatory requirement in rule
30 of the said Rules wherein Her Ladyship has
held that:-
“ [1] By virtue of the Court of Appeal decision
in Crocuses & Daffodils (M) Sdn Bhd v.
Development and Commercial Bank, r. 30(1)
of the Rules is mandatory and does not
admit an exercise of discretion by the
court. Further, the affidavit in
opposition was filed on the day of the
hearing of the petition itself. This was
clear violation of r. 30(1) that required
the filing thereof at least seven days
before the time appointed for the hearing
of the petition. Even if the court had an
overriding discretion to extend or abridge
time by virtue of r. 193, there were no
merits in the application for adjournment.
The respondent had more than ample time to
file the said affidavit if it seriously
intended to oppose the petition. The
reasons advanced by the respondent for its
tardiness were not sufficiently cogent to
justify the court’s exercise of its
discretion, if any. The fact that the
respondent waited until the last minute to
file the said affidavit could only lead
one to conclude that it was intended or
calculated to delay proceedings and was
therefore not bona fide. Although r. 193
empowers the court to grant an extension
or abridgement of time, the decision in
Crocuses & Daffodils indirectly ruled that
r. 193 did not admit the exercise of such
discretion in the case of affidavits filed
under r. 30.
[2] There was no formal application for an extension of
time filed by the counsel for the Appellants
a. The counsel for the Respondent/Petitioner further
submitted that no application for extension for
time was filed by the counsel for the 2nd
Appellant and distinguished the facts of the case
before This Honourable Court with that of the
9

10. case of Unispan Form Work Sdn Bhd v. Kim Choy
Tractor Works Sdn Bhd wherein in the above case,
a formal application for extension was filed but
the said application for extension was not
allowed whereby Alizatul Khair Osman JC has
further held at page 153 and 154 of the grounds
of judgement as follows:-
“ On the day of hearing of the petition on 4
September 2003, counsel for respondent, En T.
Gunalan applied for an adjournment on the
ground that he has just filed the affidavit in
reply (opposing the petition) together with an
application for extension of time to file the
affidavit that same morning. According to
counsel he has just received instructions and
obtained the necessary documents from his
client (respondent) on Tuesday (i.e. 2
September 2003) and hence could only file the
affidavit and the application that day. He
therefore requested for a short and final
adjournment.
Secondly, counsel relied on the Court of Appeal
decision of Crocuses & Daffodils (M) Sdn Bhd v.
Development and Commercial Bank [1997] 3 CLJ
485 (Crocuses & Daffodils) to argue that r.
30(1) of the Companies (Winding-up) Rules 1972
(the winding-up Rules) is a mandatory
requirement and the court therefore has no
discretion to grant an extension of time to
file the affidavit.
In reply, counsel for the respondent did not
deny that they had known of the petition since
23 December 2002 and was in fact served on 10
March 2003. They however contend that the delay
was attributed to their inability to obtain the
relevant documents from the respondent until
just a few days before the hearing date. Hence,
their failure to file the affidavit in reply
within the prescribed time. Counsel further
claimed that the application (for adjournment)
was not intended to frustrate the petition but
to enable the respondent to defend the
petition. According to counsel the affidavit
filed by the respondent shows relevant issues.”
10

11. b. It was submitted that the counsel for the 2nd
Appellant who had in fact admitted that they had
knowledge of the petition was under the
impression that an extension for time to file the
Defence as agreed by the counsel for the
Respondent/Petitioner for the Civil Suit at the
High Court of Malaya at Penang Civil Suit No. 22-
401-2009 extended to this Petition and was her
mistake.
c. The counsel for the Respondent/Petitioner
contended that the reasons for the delay as
stated by the counsel for the Appellants has been
from the Bar Table and those reasons for the
delay were not deposed in the said Affidavit In
Opposition and as such should not be admitted.
d. Furthermore, the counsel for the
Respondent/Petitioner had referred to Her
Ladyship’s judgement in Unispan form Work Sdn Bhd
v. Kim Choy Tractor Works Sdn Bhd on the issue of
extension of time to file the Affidavit In
Opposition at page 154, 155 & 156 which reads as
follows:-
It must be stated here that as the affidavit in
opposition was only filed that same morning, the
said affidavit was not yet in the court file and
was therefore not before the court.
As stated by the Court of Appeal in Crocuses &
Daffodils (supra), s. 221(1) of the Companies Act
1965 (the Act) empowers the court with a
discretion to grant an adjournment at the hearing
of a creditor’s petition. However, the court here
is constrained from exercising its discretion to
grant an adjournment for the following reasons:
Firstly, this court is bound by the Court of
Appeal’s decision in Crocuses and Daffodils which
held that rule 30(1) of the Winding-Up Rules is
mandatory and does not admit of an exercise of
discretion by the court. Rule 30(1) provides thus:
“Affidavits in opposition to a petition that a
company may be wound-up shall be filed and a copy
thereof on the Petitioner or his solicitor at least
seven days before the time appointed for the
hearing of the Petition. (emphasis added).
11

12. The Court of Appeal in upholding the learned
judge’s decision to disallow admission of the
four affidavits for failure to comply with r.
30(1) of the Winding-up Rules, opined that by its
words and expression r. 30(1)of the said rules is
mandatory in nature and hence must be strictly
complied with.
In the instant case the affidavit in opposition
was filed on the day of the hearing of the
petition itself. This is in clear violation of
r.30(1) which requires the affidavit to be filed
and a copy thereof served on the petitioner or
his solicitor at least seven days before the time
appointed for the hearing of the petition.
Counsel for the petitioner cited the case of Soda
KL Plaza Sdn Bhd v. Noble Circle (M) Sdn Bhd
[2002] 2 MLJ 367 in support [2002] 2 MLJ 367 in
support of her contention that the word “shall”
in r. 30(1) is mandatory in nature which does not
admit of an exercise of discretion by the court.
To my mind it is not necessary for this court to
satisfy itself on the effect of the word “shall”
in r. 30(1) as the court of Appeal has already
affirmatively rules in this issue. Suffice it to
say that this court is bound by such a ruling and
consequently the court has no alternative but to
deny the respondent’s application for an
adjournment to enable it to file the affidavit
concerned.”
e. It was also submitted by the counsel for the
Respondent/Petitioner in reliance of the
judgement in Unispan that Winding up Proceedings
should be heard expeditiously and this applies
similarly to the case before This Honourable
Court especially when the Respondent/Petitioner
has complied with Rule 32 of the Companies
(Winding-up) Rules 1972 (hereinafter referred to
as “the said Rules”).
f. The counsel for the Respondent/Petitioner also
submitted that the Petition was served on the
counsel for the 2nd
Appellant as early as in July
and that they had ample time albeit one month to
file their Affidavit In Opposition but had slept
on their rights to do so and such action should
not be entertained by This Honourable Court as it
may prejudice the Respondent/Petitioner in the
12

13. sense that this Respondent/Petitioner would not
be heard expeditiously and an Order for Winding
Up of the 1st
Appellant as envisaged by the
counsel for the Respondent/Petitioner may not be
obtained on the 1st
hearing date despite having
complied with the requirements under Rule 32 of
the said Rules.
g. Furthermore, it was also submitted by the counsel
for the Respondent/Petitioner that the act of the
counsel for the 2nd
Respondent in filing the
Affidavit In Opposition was an act calculated to
delay the proceedings before This Honourable
court and thus is not bona fide. This was based
on the following excerpts from Her Ladyship’s
judgment in the case of Unispan at page 155:-
“ Secondly, even if it can be argued (which the
court doubts in view of the Court of Appeal’s
firm ruling on this issue) that despite the
strict wording of r. 30(1), the court maintains
an overriding discretion to extend or abridge
the time appointed by the Rules by virtue of r.
193 of the Winding-up Rules, this court finds
that there are no merits in the application for
adjournment.
..As exhorted by Faiza Tamby chik J in Soda
K.L. Plaza Sdn. Bhd. (supra) “it is trite law
that rules of the court must be obeyed and in
order to justify any exercise of discretion in
favour of a party there must be material to
satisfy the court that such discretion ought to
be exercised.” Although this is the first date
of hearing of the petition, it is well
established that as a general rule, winding-up
proceedings should be heard expeditiously (see
Re Pek Chuan Development Ltd [1988] 1 MLJ 140,
the judgement of chan Sek Keong, JC (as he then
was)). The same view was expressed by the Court
of Appeal in Crocuses & Daffodils wherein Siti
norma Yaacob JCA (as she then was) pronounced
“Proceedings in the form of execution of
judgement should never be allowed to drag on
and more so, when such proceedings concern the
compulsory winding-up of a company”. Hence the
respondent should not have waited until the
last minute to file an affidavit in opposition
13

14. particularly since they had eight months to do
so. Such an act could only lead one to conclude
(although this was denied by the respondent’s
solicitors) that it was intended or calculated
to delay proceedings and is therefore not bona
fide.”
h. The counsel for the 2nd
Appellant had referred to
the cases of Arab Malaysian Merchant Bank v.
Orient Apparel Bhd [1999] 2 CLJ 647, Ng Thoong
Chen v. Kedah Marble Sdn. Bhd. 2002] MLJU 199,
Arise Enterprise Sdn. Bhd. V. Feiyen Sanherk
Hardware Sdn. Bhd. [2002] 5 CLJ 13 and had argued
that all these cases did not follow the binding
precedent in Crocuses & Daffodils and stated that
the decision of the Court of Appeal in that case
confined to its own facts.
i. However, the counsel for the
Respondent/Petitioner counter-argued that the
decisions in the Court of Appeal cases of Ayer
Molek and Anvest as well as the High Court cases
of Unispan and Mettube were derived at based on
different facts from the facts of the case in
Crocuses and as such the argument by the counsel
for the 2nd
Appellant on this issue do not hold
water.
j. Further, the High Court Authorities relied on by
the counsel for the 2nd
Appellant were in fact
addressed by Her Ladyship in the case of Unispan
and had been distinguished based on the judgement
at page 155 and 156 of the grounds of judgement
below:-
“ Finally I would like to refer to the case of
Arab Malaysian Merchant Bank v. Orient Apparel
Bhd [1999] 2 CLJ 647 which was cited by the
respondent’s counsel in support of his
submission before the court. The learned judge
in the said case had at p. 653 expressed the
following view with respect to the Court of
Appeal’s decision in Crocuses & Daffodils:
Having read Crocuses carefully it would appear
to me that all the Court of Appeal had ruled in
that case was that rule 30 was mandatory in
nature. It did not however consider the power of
the court to condone the irregularity under s.
14

15. 194(1) of the Companies (Winding-Up) Rules 1972
which provides that no proceedings under the Act
or the rules shall be invalidated by any formal
defect or any irregularity unless the court is
of the opinion that substantial injustice has
been caused by the defect or irregularities and
that the injustice cannot be remedied by any
order of the court. It follows therefore the
court of appeal’s decision in Crocuses must
construed to apply only to the factual
peculiarity of that case.
This view was endorsed in the subsequent case
of Ng Thoong Chen v. Kedah Marble Sdn. Bhd.
[2002] MLJU 199, and Arise Enterprise Sdn.
Bhd. V. Feiyen Sanherk Hardware Sdn. Bhd.
[2002] 5 CLJ 13. With respect to the views
expressed in the abovesaid cases, r. 194 of
the winding-Up Rules is to my mind is a saving
clause which seeks to preserve the validity of
winding-up proceedings in the event of any
formal defect or irregularity unless the court
is of the opinion that substantial injustice
has been caused by such defect or irregularity
under r. 194(1) can perhaps be gleaned from r.
194(2) which provides that no defect or
irregularity in the appointment or election of
a receiver, liquidator or member of a
committee of inspection shall vitiate any done
by him in good faith.”
k. The counsel for the 2nd
Appellant drew an analogy
between Rule 26 of the Companies (Winding-up)
Rules 1972 and Rule 30 of the similar Rules and
further referred to cases which concerned the
Affidavits Verifying Petition above and had
submitted that if the compliance with Rule 26
could be loosened by allowing an application for
an extension of time in the filing of the
Affidavit Verifying Petition, then similarly,
compliance with Rule 30 should not be made
mandatory wherein an application for extension of
time should be allowed in the event there has
been a delay in the filing of the Affidavit In
Opposition in pursuance to Rule 30 of the said
Rules and hence Rule 194 should apply as a saving
provision in the this case to cater for the late
filing of the Affidavit In Opposition.
15

16. l. However, the counsel for the
Respondent/Petitioner had counter argued that
such an analogy should not be drawn since
loosening in the compliance of Rule 26 only
caters for technicalities in respect of premature
swearing of the Affidavit Verifying Petition and
thus does not apply in this case before This
Honourable Court since the default here is the
late filing of the Affidavit In Opposition. This
has been reiterated by Alizatul Khair Osman JC in
the case of Unispan at page 156 of the grounds of
judgement as follows:-
“ Rule 194(1) thus envisages a defect or
irregularity which is technical in nature such
as the premature swearing of an affidavit.
.......In all these cases the court held that
the defect or irregularity is purely formal and
therefore curable under r. 194(1). Rule 194(1)
does not in my view apply to the present case.
Here, the issue is whether the court has power
to extend or abridge the time for filing the
affidavit in opposition as required by r.
30(1). Although r. 193 of the Winding-up Rules
(which is the relevant provision in this case)
empowers the court to grant such extension or
abridgement, the Court of Appeal in ruling as
it did that r. 30 is mandatory/ in nature has
directly (in my view) ruled that r. 193 does
not admit the exercise of such discretion in
the case of affidavits filed under r. 30.
For the above reasons therefore, the court is
compelled to dismiss the respondent’s
application for adjournment for the purpose of
filing the said affidavit and to order to
instead the winding-up of the respondent
company as prayed for in the petition, the
appointment of the official receiver as
liquidator and costs to be paid out the assets
of the respondent company.”
m. Hence, the counsel for the Respondent/Petitioner
had submitted that the case of Unispan Form Work
Sdn Bhd had referred to the cases of Arab
Malaysian Merchant Bank v. Orient Apparel Bhd
[199] 2 CLJ 647, Thoong Chen v. Kedah Marble Sdn.
16

17. Bhd. [2002] MLJU 199 and Arise Enterprise Sdn.
Bhd. V. Feiyen Sanherk Hardware Sdn. Bhd. [2002]
5 CLJ 13 [which were referred to by the 2nd
Appellant’s Solicitor] and had distinguished
those cases by ruling that the irregularity under
r. 194 envisages a defect or irregularity which
is technical in nature and thus does not apply to
the facts of the case of Unispan since the issue
in the case of Unispan was whether the court has
power to extend or abridge the time for filing
the affidavit in opposition as required by r.
30(1).
n. Moreover, the counsel for the
Respondent/Petitioner further submitted that the
case of Unispan had also adopted the Court of
Appeal decision in the case of Crocuses &
Daffodils (M) Sdn Bhd v. Development and
Commercial Bank which had held that rule 30 of
the said Rules is a mandatory requirement and as
such r. 193 and r. 194 do not apply as a saving
clause in circumstances wherein the Appellants
have failed to comply with the time prescribed in
rule 30 of the said Rules.
o. The counsel for the Respondent/Petitioner, in
addition, had relied on another High Court
authority of Mettube Sdn Bhd v Taiace Engineering
Sdn Bhd [2009] 1 LNS 134 which had referred to
the cases of Ayer Molek Rubber Co. Bhd v. Mirra
Sdn. Bhd., Anvest Corporation Sdn Bhd. v. Wong
Siew Choong and Dataprep (Malaysia) Sdn. Bhd. v.
Utas Lambang Sdn. Bhd. which have held that Rule
30 Companies (Winding-up) Rules 1972 is a
mandatory requirement and should be adhered to.
p. Thus in Mettube Sdn Bhd v Taiace Engineering Sdn
Bhd [2009] 10 CLJ 267 [marked as “Tag-I”
RBA], the High Court had held as follows:-
“ a) The respondent had not filed an affidavit in
opposition within 7 days before today’s
hearing.
b) Court decisions have held that Rule 30
Companies (Winding-up) Rules 1972 is a
mandatory requirement and had to be adhered
to.
17

18. i) Ayer Molek Rubber Co. Bhd. v. Mirra
Sdn. Bhd. [2008] 2 CLJ 459
ii) Anvest Corporation Sdn. Bhd. v. Wong
Siew Choong [2008] 3 CLJ 317
iii) Vovici Corporation v. MCSB Data Systems
(unreported as judgement just came
out.)
iv) Dataprep (Malaysia) Sdn. Bhd. v. Utas
Lambang Sdn. Bhd. [2009] 7 CLJ 163
e) The Companies (Winding up) Rules are very
strict because winding up is a very serious
action. Both petitioner and respondent
company is in law given rights to be heard
in court. Petitioner has complied with all
the requirements to have the petition be
granted today. Instead there is a blatant
failure on the part of the respondent to
file an affidavit to oppose the petition. I
refer to Dataprep (Malaysia) Sdn. Bhd. v.
Utas Linkage Sdn. Bhd. [2009] 7 CLJ 163.
The facts of this case is similar to that as our
case ie, it has been more than 4 months since we
serve the petition on the Respondent and also we
serve the petition on Encik Isa bin Ismail.
Enough time has been given to everybody to
appoint counsel to file their respective
affidavit to oppose the petition. It is not fair
today to prejudice petitioner even more when the
petitioner has complied with all the requirements
under the law. The default is that of the
respondent.
Decision:-
If the respondent intends to contest a winding up
petition it should file an affidavit to oppose
the petition under Rule 30(1) of the Companies
(Winding-up) Rules 1972 which reads as follows:-
“30(1) Affidavits in opposition to a petition
that a company may be wound up shall be
18

19. filed and a copy thereof served on the
petitioner or his solicitor at least seven
days before the time appointed for the
hearing of the petition.”
However, the respondent issued and served to the
petitioner a notice of intention to appear under
Rule 28 Companies (Winding-up) Rules 19 72. at
the hearing, counsel for the respondent urged the
Court to adjourn the winding up proceeding on the
basis that it had filed unfortunately on the day
before the hearing the application to strike out
and set it aside this petition for winding up
respondent company.
If the respondent is serious in contesting the
matter, it should have filed those application
months ago immediately after it was served with
petition on 27 November 2008. It has more than
two and a half months to do so. Instead, it filed
the application on the day before the proceeding.
I find that this is an attempt to simply delay
the hearing of the petition.
It is an undisputed fact that an affidavit to
oppose the petition under rule 30 of the
Companies (Winding-up) Rules 1972 was not filed.
In the court of Appeal case of Crocuses and
Daffodils (M) Sdn. Bhd. v. Development &
Commercial Bank [1997] 3 CLJ 485, Siti Norma JCA
(as she then was) said:-
“By their words and expression, r. 30(1) is
mandatory in nature and as such the learned Judge
was correct when he refused to admit all four
affidavits in opposition for non-compliance of
that particular rule. The fact that the four
affidavits were only relied upon on 24 November
1995 does not alter the position as such
affidavits were intended for use in the earlier
hearings which never took place as all the
earlier hearings were adjourned for some reason
or other.”
........the exercise of the High Court’s
discretion in rejecting the purported settlement
on the very day of the hearing of the petition
19

20. and its refusal for an adjournment was, in the
circumstances, not wrong. The appellant was
required in law to file an affidavit in
opposition to the petition, which it had not done
(r. 30(1) of the Companies (Winding-up) Rules
1972.”
q. In light of the cases referred to above, the
counsel for the Respondent/Petitioner had
submitted that the Affidavit in Opposition was
filed out of time which is a clear contravention
of the mandatory Rule 30 of the Companies
(Winding-up) Rules 1972 and any application for
the extension of time in pursuance to r. 193 and
r.194 should not be entertained on the basis that
these saving clauses have no application to the
case before This Honourable Court based on the
cases as highlighted above and in any event there
is no formal application for the extension of
time made here.
[3] Order 1A is pari materia with Rule 194 Companies
(Winding-up) Rules 1972
a. The counsel for the Respondent/Petitioner had
submitted that Order 1A is pari materia with Rule
194 of the said Rules and thus the Federal Court
case of DULI YANG AMAT MULIA TUNKU IBRAHIM ISMAIL
IBNI SULTAN ISKANDAR AL-HAJ v. Datuk Captain
Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ
329 [marked as “Tag-C” RBA] should be followed
wherein the courts have now moved towards the
view of applying the saving provision of Order 1A
sparingly and upholding the need for strict
compliance with the mandatory requirements such
as in the case before This Honourable Court
albeit Rule 30(1) of the said Rules.
b. The counsel for the Respondent/Petitioner had
also referred to the case of Chong Keat Realty
(which was referred to by the counsel for the 2nd
Appellant) and distinguished the said case with
the case of DULI YANG AMAT MULIA TUNKU IBRAHIM
ISMAIL IBNI SULTAN ISKANDAR AL-HAJ v. Datuk
Captain Hamzah Mohd Noor & Another Appeal [2009]
4 CLJ 329 [marked as “Tag-C” RBA] and contended
that the Courts are more inclined to follow the
decision in DULI YANG AMAT MULIA TUNKU IBRAHIM
20

21. ISMAIL IBNI SULTAN ISKANDAR AL-HAJ v. Datuk
Captain Hamzah Mohd Noor & Another Appeal wherein
the words “shall” and “must” are used in the
provision with the intention of ensuring that the
rules are complied with and no discretion is to
be given as far as the compliance with the
prerequisites are concerned.
c. Also, in DULI YANG AMAT MULIA TUNKU IBRAHIM
ISMAIL IBNI SULTAN ISKANDAR AL-HAJ v. Datuk
Captain Hamzah Mohd Noor & Another Appeal[2009] 4
CLJ 329 [marked as “Tag-C” RBA], Zaki Tun Azmi
CJ has held that :
“A party who is late in filing the relevant
papers must obtain an order from the court to
extend the time, if such extension is required
and is permitted by the Rules.”
d. Hence, applying this excerpt to the case before
This Honourable Court, the counsel for the
Petitioner had expressly highlighted to This
Honourable Court that the counsel for the 2nd
Appellant has not obtained any such order from
the Court for an extension of time and thus an
extension of time should not be allowed in this
case.
e. Moreover, the decision in DULI YANG AMAT MULIA
TUNKU IBRAHIM ISMAIL IBNI SULTAN ISKANDAR AL-HAJ
v. Datuk Captain Hamzah Mohd Noor & Another Appeal
further states that the stringent rules are
introduced to prevent abuse by the parties which
creates backlog of cases and results in a false
number of pending cases. As such, the
Respondent/Petitioner submitted that Rule 30
should be strictly enforced as required by the
rule otherwise rule 30 would become a dead letter
and the object of the said rule would be defeated.
[4] The Deadlock in the management of the company was
not caused by the Respondent/Petitioner
a. The counsel for the 2nd
Appellant had submitted
that the Respondent/Petitioner is at fault for
causing the deadlock in the management of the
company.
21

22. b. The counsel for the Respondent/Petitioner had
counter-argued that the 1st
Appellant is comprised
of only 2 directors and as such when there arises
a situation whereby there are 2 differing schools
of thought, then a deadlock in the management of
the Company would take place since the directors
could not meet eye-to-eye with each other and
where there is a irretrievable breakdown mutual
trust and confidence.
Refer to :-
1. Chua Kien How v. Goodwealth Trading Pte Ltd
& Anor [1992] 2 SLR 296 [marked as “Tag-J”
RBA];
2. Grand Choice Sdn Bhd v. Direct Idea Sdn Bhd
[1998] 1 CLJ Supp 427 [marked as “Tag-K”
RBA].
c. In light of the above, the counsel for the
Respondent/Petitioner had prayed that the
Preliminary Objection be allowed and the
Affidavit In Opposition be rendered inadmissible
resulting in the 2nd
Appellant failing to file any
affidavit in reply to the Respondent/Petitioner’s
Petition following the case of Ng Hee Thoong &
Anor v. Public Bank Bhd [1995] 1 MLJ 283 [marked
as “Tag-E” RBA].
d. Hence, based on the above, the
Respondent/Petitioner’s preliminary objection was
allowed by the Honourable High Court Judge at
Penang. In light of this, the High Court Judge at
Penang has not erred in law in allowing the
Respondent/Petitioner’s prayers in the Petition
since all the evidence of irregularities
committed by the Appellants have been presented
before the Learned Judge before the preliminary
objection was allowed.
[4] THE GROUNDS FOR THE WINDING UP PETITION
[A] The Substratum of the Company is no longer in
existence and/or will not be effected
22

23. a. The Respondent/Petitioner submits that the
substratum of the Company is no longer in
existence and/or will not be effected for the
following reasons:-
i. Lee Cheng Guat, being the beneficial owner
of Lot 1416 no longer intends to let the
Company hold the land known as Lot 1416
and insist on its return.
ii. Further, it is a dormant company with no
business transactions effected.
iii. The Registrar of Companies has written
letters to the company for failure to
submit accounts and summoned a fine as
penalty on the company and had further
threatened to wind up the Company being a
dormant Company.
iv. The land of which the company is holding
on trust has been requested by the
beneficiary to be returned to the
beneficiary as no action has been taken on
this.
v. The land has been abandoned and infested.
As a result, summons were issued by MPPP
against the Company upon which the
Respondent/Petitioner had, vide a letter
asked the Appellants for a discussion on
this but the Appellants have failed to do
so. The Respondent/Petitioner has on his
own accord rectified the offences under
the summons.
vi. Monies to the purchase of the land was
paid from the respective beneficiaries of
the land. In addition Lee Cheng Guat has
paid other related expenses, taxes, quit
rent and assessment etc. for the Land.
b. Hence based on the above, the
Respondent/Petitioner submits that the
substratum of the company has been lost due to
the fact that the purpose for which the 1st
Appellant has been formed is no longer in
existence i.e to purchase the land known as Lot
23

24. No. 1416, H.S.(D) 291 (the GRN 61820) and Lot
1417, H.S.(D) 292 (the GRN 61821) both situated
in Section 3, Bandar Georgetown, Daerah Timur
Laut, Penang (hereinafter referred to as “the
said land”) since the beneficial owner no longer
intends to let the 1st
Appellant hold the land
known as Lot 1416 on trust and insists on its
return.
Refer to :-
Chua Kien How v. Goodwealth Trading Pte Ltd Anor
[1992] 2 SLR 296 [marked as “Tag-J” RBA]:-
“ (4) The memorandum of association
determining the main object or
substratum of the company. The reason
is that it was formed as a shelf
company by corporators with no
particular object in mind. Their
purpose was to sell it to whomsoever
needed a corporate vehicle quickly in
order to start a business. The objects
clause was accordingly drafted to
include as many objects as the
draftsman could think of. They were all
‘paper’ objects designed for all things
and for all reasons.
(5) The learned judge was correct in
finding that the main object of the
company was its restaurant business
located at Shaw House specifically and
no other place. The original
shareholders wanted a corporate vehicle
to carry on the restaurant at Shaw
House after the Respondent/Petitioner
had secured a lease of the premises for
that purpose, and they had no other
object in mind. There was sufficient
evidence from which the court was
entitled to infer that the appellant
decided to become a shareholder because
of the location of the restaurant, he
being a friend of the general manager
of the landlords. The company’s
substratum therefore disappeared with
24

25. the termination of the lease of the
premises.”
c. In view of the above case, it is submitted that
the principal object for which the 1st
Appellant
was established are inter alia:-
i. To carry on business as buyer, seller,
importers, manufacturers, producers,
dealers, buying or selling commission agents
and otherwise deal in goods, merchandise,
commodities, plant and machinery and
articles of all descriptions.
ii. To buy or otherwise acquire shares, stocks,
debentures, of other securities issued by
any other Company to invest upon or without
security the moneys of the Company in such
manner or may from time to time be
determined and to hold any such shares,
securities or investments or at any time or
times to sell, realise the sums and to re-
invest the proceeds.
d. It was also agreed between the beneficial owner
and the 2nd
Appellant that the Company, i.e. the
1st
Appellant is to hold the said land on trust
and is to return the said land to the respective
beneficiary upon request. Hence, since the
purpose for which the 1st
Appellant was
established is terminated upon the request by
the beneficial owner for the return of the said
land, hence the substratum of the Company is no
longer in existence thus warranting for the need
to wind up the 1st
Appellant.
e. Furthermore, what is of utmost importance is the
fact that the purchaser i.e. Lee Cheng Guat has
filed a Civil Suit No. 22-401-2009 at the Penang
High Court for inter alia, a Declaratory Order
that the 1st
Appellant is holding the said Lot
1416 on trust for the purchaser, i.e. Lee Cheng
Guat and an Order that the said Lot 1416 is
transferred to the said Purchaser, i.e. Lee
Cheng Guat for which the said Purchaser had
obtained an Order in Terms on 12.4.2012 in
respect of an application pursuant to Order 14A
25

26. Rules of the High Court 1980 filed by the
Purchaser, i.e. Lee Cheng Guat.
f. Also, it is also pertinent to note that to date,
there is no Appeal which has been filed against
the said Order dated 12.4.2012 which has allowed
for the said Lot 1416 be transferred to the
Purchaser, Lee Cheng Guat.
[B] The Company has failed to file any account from 2003
to 2008 and continuing
a. The company is in default of lodging the
Statutory Report since 2003 and has been
compounded by the ROC.
b. The Respondent/Petitioner has requested the
company to commence a shareholders’ and
directors’ meeting to discuss the draft accounts
but the other shareholder and director i.e. the
2nd
Appellant has refused to do so.
c. The draft accounts are not in order and there is
discrepancy whereby the Respondent/Petitioner
has through his solicitor requested the meeting
to be held to discuss the accounts but the 2nd
Appellant has refused to do so.
d. In addition, the Respondent/Petitioner’s
Solicitors had also written a notice to demand
for such meeting but the 2nd
Appellant has
refused or failed to do the same.
e. The 1st
Appellant wanted the
Respondent/Petitioner to sign the accounts
prepared in advance without discussion and
consultation of which the Respondent/Petitioner
has refused to so do because it was not a
correct reflection of the status.
Refer to :-
Section 217(2)(b) Companies Act 1965 [marked as
“Tag-L” RBA] reads as follows : -
“ a petition shall not, if the ground of the
petition is default in lodging the statutory
report or in holding the statutory meeting, be
26

27. presented by any person except a contributory or
the Minister nor before the expiration of
fourteen days after the last day on which the
meeting ought to have been held.”
f. The Respondent/Petitioner submits that since one
of the grounds for which the said Petition is
presented before The Honourable Court at Penang
High Court is on the basis that the 2nd
Appellant
is in default of lodging the Statutory Report
since 2003, the Petition can only be presented
by a contributory in pursuance to Section 217(2)
(b) of the Companies Act 1965 and this has been
complied with.
Further, the wishes of the creditor i.e. Lee
Cheng Guat should supercede that of the
contributory since the said land known as Lot
No. 1416, H.S.(D) 291 (the GRN 61820 situated in
Section 3, Bandar Georgetown, Daerah Timur Laut,
Penang is owned by the said creditor and as such
is entitled to the return of the said land which
is held on trust by the 1st
Appellant.
Refer to :-
In Re Camburn Petroleum Products Ltd [1980] 1
WLR 86 [marked as “Tag-M” RBA]:-
“ that a creditor whose debt was established was
prima face entitled to a winding up order even
though the petition was opposed by a
contributory of the company, for although, under
sections 225 and 346 of the Companies Act 1948,
the court had a discretion to consider the
wishes of a contributory, it would ordinarily
attach little weight to such wishes in
comparison with the weight it attached to the
wishes of any creditor who proved both that he
was unpaid and that the company was “unable to
pay its debts”; that while, therefore, the court
had jurisdiction to adjourn the creditor’s
petition, it would only do so in exceptional
circumstances which justified that course, and
since any injustice caused to the contributory,
C, would be far outweighed by the injustice
which an adjournment would cause to the
27

28. petitioning creditor, the court would make an
immediate winding up order.”
[C] DEADLOCK IN DECISION AND SHAREHOLDERS AND
DIRECTORS’ MEETING
a. Since there are only 2 shareholders and 2
directors, the Respondent/Petitioner has
requested for a meeting vide his solicitors to
resolve numerous issues but the 2nd
Appellant has
refused to comply. Further since there are 2
shareholders and 2 directors there will be a
deadlock in all aspects.
Refer to :-
Chua Kien How v. Goodwealth Trading Pte Ltd &
Anor [1992] 2 SLR 296 [marked “Tag-J” RBA]
wherein it was held that:-
“(1) Of only two directors of a company
cannot agree with each other, and
neither can overrule the other, there
is a deadlock which if it occurs in a
partnership, justifies the court in
winding up the partnership.”
b. The counsel for the 2nd
Appellant had submitted
in his Submission in Reply dated 25.1.2010 filed
at the High Court at Penang that the
Respondent/Petitioner is at fault for causing
the deadlock in the management of the company.
c. The counsel for the Respondent/Petitioner had
counter-argued that the 1st
Appellant is
comprised of only 2 directors and as such when
there arises a situation whereby there are 2
differing schools of thought, then a deadlock in
the management of the Company would take place
since the directors could not meet eye-to-eye
with each other and where mutual trust and
confidence breaks down irretrievably.
Refer to :-
i. Chua Kien How v. Goodwealth Trading Pte Ltd
& Anor [1992] 2 SLR 296 [marked as “Tag-J”
RBA]; and
28

29. ii. Grand Choice Sdn Bhd v. Direct Idea Sdn Bhd
[1998] 1 CLJ Supp 427 [marked as “Tag-K”
RBA].
[D] BREACH OF FIDUCIARY DUTIES OF DIRECTORS
a. The other director, i.e. the 2nd
Appellant is in
breach of fiduciary duty as he has failed to act
in the interest of the company. The beneficial
owner of Lot 1416 has requested for the return
of the same for many years and till to date the
other directors has refused to act on it. A
Civil Suit has also been filed against the
Appellants in respect of the same in the High
Court at Penang.
b. In view of the matters enumerated above, the
Respondent/Petitioner states that the affairs of
the company is not in order and the company has
been exposed to offences under the Companies Act
1965 by the Registrar of Companies and
imposition of penalty by the relevant
authorities.
c. There is lack of probity and fair dealing in the
affairs of the company to the prejudice of the
Respondent/Petitioner as the other shareholder
has refused to commence a meeting and discuss
the accounts and to resolve the issues faced by
the Company. There is deadlock in every aspect
and substratum of the Company whereby consensus
regarding the same cannot be obtained.
Refer to :-
Grand Choice Sdn Bhd v. Direct Idea Sdn Bhd
[1998] 1 CLJ Supp 427 [marked as “Tag-K” RBA]
reads as follows:-
“[1] The courts have granted winding-up on
the “just and equitable” principles in
circumstances where (i) the foundation
of the company has collapsed (ii) there
is a complete deadlock in the
management of the company (iii) a
shareholder has been excluded
completely from the management of the
company in breach of a specified
29

30. understanding (iv) minority
shareholders in a family company have
been excluded from enjoying the profits
from the company (v) in a partnership
venture, one partner manages the
company to the exclusion of the other
partner (vi) mutual trust and
confidence breaks down irretrievably.
[3] It was basically a question of fact in
the present case whether a deadlock had
come about to justify winding-up the
respondent. On the evidence, there was
a total lack of mutual confidence and
trust between the parties and there was
no way in which they could continue to
function as shareholders. The facts as
presented point to the existence of a
deadlock.”
c. Further, it was also agreed upon by the parties
that the said Lots were to be returned to the
parties concerned upon request.
d. In light of the above, it is apparent that the
establishment of the 1st
Appellant is solely for
the purpose of sale and purchase of the said
Lots and that the said Lots were only held on
trust at all material times by the 1st
Appellant
for the respective beneficiaries.
e. As such, the Respondent/Petitioner submits that
it is the other director, i.e. the 2nd
Appellant
who is in breach of fiduciary duty as he has
failed to act in the interest of the company.
This is on the basis that despite the beneficial
owner of Lot 1416’s request for the return of
the same for many years and there is refusal by
the other director to act on it. Thus, a Civil
Suit has also been filed against the Appellants
in respect of the same in the High Court at
Penang.
[E] IT IS JUST AND EQUITABLE THAT THE COMPANY BE
WOUND UP
a. It is thus just and equitable to wind up the
company pursuant to Section 217(2)(b) and Section
30

31. 218 (1)(d) and/or (i) of the Companies Act 1965
on the following grounds :-
i. There is a failure in lodging the statutory
report or in holding the statutory meetings
for the year 2003-2008 and the time for
lodging such accounts and holding such
meetings have long gone.
ii. There has been a break down of mutual
confidence and good faith amongst the 2
directors and 2 shareholders who are in
charge of the management of the company
whereby the 2nd
Appellant has repudiated the
common agreement and the fundamental
understanding as aforesaid which existed
during the incorporation stage and which
was intended to form and sustain the basis
of their relationship.
iii. The relationship of trust and confidence
between the shareholders has broken down
irretrievably due to the conduct of the 2nd
Appellant being the only other director and
shareholder.
Refer to :-
Tien Ik Enterprise Sdn Bhd & Ors v.
Woodsville Sdn Bhd [1995] 1 MLJ 769 [marked
as “Tag-N” RBA] wherein it was held that:-
“(3) It is clear that the parties had
agreed in March 1987 to wind up
the companies voluntarily and that
was clear evidence that they no
longer enjoy the confidence of
each other and the voluntary
winding up was their solution to
their problems. While that was not
the reason for winding up the
companies, it provided convincing
evidence of the breakdown of
mutual confidence among the
parties to justify the winding up
on the just and equitable ground.”
31

32. iv. This is also further precipitated by the fact
the beneficiaries of the land have also
lost confidence in each other and the
Company.
v. There has been deliberate and consistent
violation and disregard of the
Respondent/Petitioner’s rights pursuant to
the Companies Act and the Articles and he
has been deprived of his right to call for
the meeting and discuss matters of the
Company.
vi. The manner in which the affairs of the company
has been conducted have revealed serious
breakdown and deadlock.
vii. There is destruction of the corporate
substratum and the destruction of the
objects for which the company was formed.
[F] THERE IS NO MERIT IN THE 2ND
APPELLANT’S CASE AS
AGAINST THE WINDING UP PETITION
b. Hence the Respondent/Petitioner humbly submits
that all the above grounds justify for the
winding up of the company pursuant Section 217
(2)(b) and 218 (1) (f) and/or (i) of the Company
Act 1965.
[5] CONCLUSION
Based on the arguments and grounds for the filing of
the Winding up Petition, the Respondent humbly prays
for the dismissal of this Appeal with costs.
Dated this 29th
day of August, 2012.
..............................
SOLICITORS FOR THE
RESPONDENT/PETITIONERS
MESSRS. PRESGRAVE & MATTHEWS
32

33. This Respondent/Petitioner’s Written Submission is filed by
Messrs. Presgrave & Matthews, whose address for service at
1st
Floor, Chambers of Standard Chartered Bank, No. 2, Beach
Street, 10300 Penang, solicitors for the
Respondent/Petitioner.
33